Young and Anor v Gosford City Council - [2001] NSWLEC 191 - NSWLEC 1990 case summary — Zoe

NSWNSWLEC

Young and Anor v Gosford City Council

[2001] NSWLEC 191

Land and Environment Court (NSW)|1990-06-12|Before: McEwen AJ, Young J, Talbot J, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1990-06-12

Before

McEwen AJ, Young J, Talbot J, Mr J

Source

Original judgment source is linked above.

Judgment (90 paragraphs)

[1]

CITATION : Young and Anor v Gosford City Council [2001] NSWLEC 191 APPLICANTS Gary Robert Young and Michele Louise Skelton PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 10984 of 2000 CORAM: McEwen AJ KEY ISSUES: Section 56A Appeal :- error of law - failure to consider relevant matters - ultra vires - finality - procedural fairness Conveyancing Act 1919, s 88K Environmental Planning and Assessment Act 1979, s 4, s 4B, s 79C, s 80, s 80(1), s 80(3), s 80A(4), s 149 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, reg 95 Land and Environment Court Act 1979, s 36(5), s 38(1), s 38(2) Local Government Act 1993, ss 45 & 46 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208; Azzopardi v Tasman UEB Industries Ltd (1986) 4 NSWLR 139; Bathurst City Council v PWC Properties Pty Limited (1999) 195 CLR 566; Bluewater District Services Pty Ltd v Sutherland Shire Council (1998) 97 LGERA 389; Designlink International v Baulkham Hills Shire Council (2000) 105 LGERA 299; Future Graphics Pty Ltd v Fuelpoint Pty Ltd (Young J, NSWSC Eq. D., 12 June 1990, unreported); Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 400, 422; Helman v Byron Shire Council and Anor (1995) 87 LGERA 349; Holcombe and Ors v Coulton and Ors (1989) 17 NSWLR 71; Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113; Lend Lease Management Pty Ltd and Anor v Sydney City Council and Ors (1989) 68 LGRA 61; Lyne and Anor v Moree Plains Shire Council (2000) 110 LGERA 120; Mareen Developments v Brisbane City Council (1972) 24 LGRA 363; Marshall and Anor v The Council of the City of Wollongong [2000] NSWSC 137, unreported; CASES CITED: Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1987) 162 CLR 24; Mison and Ors v Randwick Municipal Council (1991) 73 LGRA 349; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151; North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470; Page v Parkes Shire Council (1991) 72 LGRA 97; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841; Pyx Granite Co v The Ministry of Housing and Local Government and Anor [1958] 1 QB 554; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; Remath Investments No 6 Pty Ltd v Botany City Council (No 2) (Talbot J, NSWLEC, 11 December 1996, unreported); Scott and Ors v Wollongong City Council and Anor (1992) 75 LGRA 112; Tier Consulting Group Pty Ltd v Blue Mountains City Council (1998) 99 LGERA 31; Weal v Bathurst City Council and Anor (2000) 111 LGERA 181; Yoemans and Anor v Woollahra Municipal Council (1980) 36 LGRA 81; Zhang v Canterbury City Council [2001] NSWCA 167, unreported DATES OF HEARING: 06/08/2001, 07/08/2001 DATE OF JUDGMENT: 08/20/2001

[52]

No submission was put by the Council to the Commissioner that it was not open to him to grant a consent in the way he has, albeit a question of his power to do so was flagged but not pressed. Relevantly it was not put to the Commissioner that without the Questions of Law being determined he was unable to proceed to either properly consider the relevance in planning terms of the "purpose" of Lot 17, or proceed to determine the application in that context. Consistent with the approach taken by Cripps J (as he then was) in Page v Parkes Shire Council (1991) 72 LGRA 97, the Council ought not be now heard to complain that the Commissioner has failed to take the steps it now says that he ought to have taken (p 102.4 - 103.5). When the Commissioner made it plain that he was considering not referring the Questions of Law to the Chief Judge (transcript p 102, p 110), no submission was put that determination of the Questions of Law by the Chief Judge was essential as a preliminary step. Notwithstanding proceedings in Class 1 before the Commissioner being conducted "…with as little formality and technicality… as the proper considerations before the Court permit" (s 38(1) of the Court Act), and notwithstanding that the rules of evidence don't apply and a Commissioner may inform themself as he or she sees fit (s 38(2)), none the less the proceedings are not inquisitorial but adversarial, and there is no reason why the principle that decisions and choices made by parties in the conduct of the hearing, ought not be binding upon them. There is a long list of authority to the effect that points not raised at an initial hearing ought not, except in exceptional circumstances, be permitted to be raised on appeal. Had the Commissioner been pressed to refer the Questions for determination by the Chief Judge, those questions by their nature would have admitted of the opportunity to adduce further evidence, relevant to their determination. The Commissioner not being pressed to make the reference, that opportunity has now gone, to the possible and probable prejudice of the applicants. (Holcomb and Ors v Coulton and Ors (1989) 17 NSWLR 71; Future Graphics Pty Ltd v Fuelpoint Pty Ltd (Young J, NSWSC Eq. D. 12 June 1990, unreported, cited in Leslie, par 120:20)). No submission was put to the Commissioner that it was imperative for him to refer the Questions, to enable him to proceed to a proper merit consideration. In the absence of such a submission being put at the hearing, it is inappropriate for the Council now to complain that the Commissioner failed to do so.