Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253

Land and Environment Court New South Wales

Medium Neutral Citation: Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253 Hearing dates: 16 December 2011 Decision date: 16 December 2011 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: 1. The appeal is upheld. 2. The decision and orders of the Commissioner dated 30 August 2011 are set aside. 3. The matter is remitted to the Commissioner for determination by the Commissioner in accordance with the decision of the Court. 4. The respondent is to pay the applicant's costs of the appeal. 5. The respondent is to have a certificate under the Suitors' Fund Act 1951 with respect to the costs of the appeal referred to in Order 4, if otherwise qualified. 6. The matter is listed for directions before the Registrar on Wednesday 21 December 2011. Catchwords: APPEAL - s 56A(1) appeal against commissioner's decision - development application to construct commercial/residential development in Manly - commissioner refused consent - whether commissioner erred on questions of law - commissioner's construction and application of height control provisions in development control plan involved errors on questions of law - appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979 ss 72, 79C Land and Environment Court Act 1979 s 56A Suitors' Fund Act 1951 Cases Cited: Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Hurstville City Council v Goreski [2011] NSWLEC 188 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 Svedas v Council of the City of Sydney [2011] NSWLEC 215 Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Category: Principal judgment Parties: Tricon Services Group Pty Limited (Applicant) Manly Council (Respondent) Representation: Mr P C Tomasetti SC with Mr J L Doyle (Applicant) Mr M A Staunton (Respondent) Hunter Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10879 of 2011