Port Stephens Council v Chan Industrial Pty Limited & Anor [2005] NSWCA 232

Reported Decision : 141 LGERA 226

New South Wales Court of Appeal

CITATION: Port Stephens Council v Chan Industrial Pty Limited & Anor [2005] NSWCA 232

HEARING DATE(S): Monday 4 July 2005

JUDGMENT DATE: 19 July 2005

JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Brownie AJA at 44

DECISION: (1) Appeal allowed; (2) Set aside the declaration and orders made by Cowdroy J on 19 November 2004; (3) Remit the proceedings to the Land and Environment Court for further consideration and determination in accordance with the decision of this Court; (4) The first respondent to pay the costs of the appellant and the second respondent in the Court below with respect to the separate question and to pay the appellant's costs of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS: ENVIRONMENT AND PLANNING - Development consent - Whether grant of consent lawful - Whether building exceeded height limit mandated in Council's Local Environmental Plan (LEP) - Proper construction of definition of "height" in LEP - Proper approach to construction of delegated legislation - Object or purpose of the height control

Supreme Court Rules 1970 LEGISLATION CITED: Port Stephens Local Environment Plan 2000

Kingston v Keprose Pty Limited (No 3) (1987) 11 NSWLR 404 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 CASES CITED: Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 Hecar Investments No 6 Pty Limited v Lake Macquarie Municipal Council (1984) 53 LGRA 322

Port Stephens Council PARTIES: Chan Industrial Pty Limited Allan J Bealing