North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20

High Court of Australia Brennan CJ Dawson, Toohey, McHugh and Gummow JJ North Sydney Council v Ligon 302 Pty Ltd (FC 96/022) [1996] HCA 20

ORDER

1. Subject to par 2 of this order, appeal dismissed.

2. Set aside par 3 of the order of the New South Wales Court of Appeal and in lieu thereof order: "In lieu thereof the proceedings be remitted to the Land and Environment Court for determination by that Court in accordance with the decision of the High Court of Australia."

3. The appellant pay the respondent's costs in this Court.

Cur adv vult

The Court delivered the following written judgment:—

6 August 1996 Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

The respondent (Ligon) lodged a development application with the appellant (the Council) on 23 May 1994 in respect of a proposed development on land on which the North Sydney Club is built. The proposed development would extend the Club premises and add a tenstorey residential block. The Club site abuts on the Warringah Expressway. That is the only road frontage, but access can be had to the Club site across an adjoining parcel of land of which Century Plaza is the registered proprietor of an estate in fee simple. Access from Walker Street (which runs parallel to the Expressway) can be had by an easement conferring a right of carriageway across the Century Plaza land to the Club site. Access from Berry Street (which runs at right angles to Walker Street and the Expressway and joins the two) can be had by two easements conferring rights of footway and one easement conferring a right of carriageway across the Century Plaza land to the Club site.

The Club site is zoned No 5(a) — Special Uses (Club) — and the Century Plaza land is zoned No 2(c) — Residential — under the North Sydney Council Local Environmental Plan 1989 as amended. The Plan is made under Div 4 of Pt 3 of the Environmental Planning and Assessment Act 1979 NSW (the Act). Under the Plan, the proposed development of the Club site cannot be carried out except with consent under the Act. The Council is the relevant consent authority (see s 4). Section 76(2) provides as follows: