North Sydney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69

Land and Environment Court New South Wales

Medium Neutral Citation: North Sydney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69 Hearing dates: 31 May 2017 Date of orders: 14 June 2017 Decision date: 14 June 2017 Jurisdiction: Class 1 Before: Moore J Decision: Orders at [90] Catchwords: APPEAL – appeal on question of law against Commissioner's decision– refurbishment of registered club premises; hours of operation and patron numbers – use of outdoor area (part of former bowling green) for dining – three grounds of appeal – incorrect interpretation of provisions of the applicable Local Environment Plan (Ground 1); manifestly unreasonable decision (Ground 2); and denial of procedural fairness (Ground 3) APPEAL – Ground 1 – cl 2.5 of the applicable Local Environment Plan provides special regime for site – whether Commissioner's interpretation of clause correct to exclude applicability of other clauses of the Local Environment Plan – Commissioner's reasoning incorrect – nonetheless, a "fair reading" of the Commissioner's decision discloses that he considered and dealt with the relevant matters, notwithstanding his conclusion that the clause was not applicable – Ground 1 fails APPEAL – Ground 3 considered prior to Ground 2 – no necessity to consider Ground 2 given Appellant's success on Ground 3 APPEAL – Ground 3 – reasonable expectation that Commissioner would make general findings and permit parties to be heard on conditions appropriate to reflect findings – imposition of condition of development consent without affording Appellant opportunity to be heard on its terms – denial of procedural fairness under the circumstances – Ground 3 made out – appeal upheld APPEAL– parties reached agreed position on what amended condition of development consent should be imposed if Ground 1 failed but Ground 2 and/or 3 succeeded – powers of the Court on appeal – s 56A(2)(b) permits making "such other order in relation to the appeal" as might be dispositive of appeal without remitter to the Commissioner – in light of the parties' agreement to a replacement condition of consent, appropriate to order amendment of conditions of development consent granted by Commissioner in lieu of remitter – consolidated, amended conditions of development consent also ordered Legislation Cited: Environmental Planning and Assessment Act 1979, s 97 Land and Environment Court Act 1979, s 56A North Sydney Development Control Plan 2013 North Sydney Local Environmental Plan 2013, cll 2.3, 2.5 and 6.7 Cases Cited: Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 North Sydney Leagues Club Ltd v North Sydney Council [2017] NSWLEC 1002 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Category: Principal judgment Parties: North Sydney Council (Appellant) North Sydney Leagues Club Ltd (Respondent) Representation: Counsel: Mr T To, barrister (Appellant) Mr C McEwen SC and Mr T March, barrister (Respondent)