Shao v Hornsby Shire Council [2001] NSWLEC 254

Reported Decision : (2001) 116 LGERA 462

Land and Environment Court of New South Wales

CITATION : Shao v Hornsby Shire Council [2001] NSWLEC 254 APPLICANT Shao PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10803 of 2000 CORAM: Cowdroy J KEY ISSUES: Section 56A Appeal :- procedural fairness LEGISLATION CITED: Land and Environment Court Act 1979 s 56A Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170; CASES CITED: Kioa v West (1985) 159 CLR 550 ; Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734 ; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 DATES OF HEARING: 22/10/01 DATE OF JUDGMENT: 11/08/2001

APPLICANT Mr G Miller QC

SOLICITORS E Philips & Co LEGAL REPRESENTATIVES: RESPONDENT Mr J Maston (Barrister) with Mr C Dimitriadis (Barrister)

SOLICITORS Hornsby Shire Council

JUDGMENT:

IN THE LAND AND MATTER No. 10803 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 8/11/01

Hong Shao Applicant v Hornsby Shire Council Respondent JUDGMENT

Facts

1. The applicant appeals to the Court pursuant to s 56A of the Land and Environment Court Act 1979 ("the LEC Act") from the decision of Commissioner Murrell delivered on 26 June 2001. In such decision the Commissioner dismissed an appeal against the respondent's ("the council") refusal of a development application to use part of the premises known as Shop F at 87 Pacific Highway, Hornsby ("the premises") for a brothel ("the application"). The application was made upon the basis that the development involved a change in the use of the premises. 2. The applicant claims that the Commissioner made an error of law because she denied him procedural fairness by dismissing the appeal upon a ground which was not identified as an issue at the hearing of the appeal. The applicant also claims that the Commissioner denied procedural fairness by not providing an opportunity to call evidence relating to such issue.