Barrak v City of Parramatta Council [2018] NSWLEC 67

Land and Environment Court New South Wales

Medium Neutral Citation: Barrak v City of Parramatta Council [2018] NSWLEC 67 Hearing dates: 20 March 2018 Date of orders: 02 May 2018 Decision date: 02 May 2018 Jurisdiction: Class 1 Before: Moore J Decision: 1 The appeal is dismissed; and 2 The Appellant is to pay the Respondent's costs as agreed or assessed. Catchwords: APPEAL - s 56A appeal against decision of Commissioner - challenge to Commissioner's use of objective of Height of Buildings clause of Local Environmental Plan - whether contested objective had work to do - role of provision in the statute compared to the role of an environmental planning instrument created as a subordinate document - a provision in an environmental planning instrument cannot constrain a mandated requirement for an assessment pursuant to the statute - construction of the provisions of the environmental planning instrument - power to "read in" additional words - reading in not necessary for sense of provision in Local Environmental Plan - no vitiating defect in Commissioner's fact-finding - fact-finding not infected by unreasonableness - appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979, s79C(1)(a)(i) Land and Environment Court Act 1979, ss 34 and 56A Parramatta Development Control Plan 2011 Parramatta Local Environmental Plan 2011, cll 2.3, 4.3, 4.6, 5.10 and 10.10 Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Barrak v Parramatta City Council [2017] NSWLEC 1244 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Chen v Virgona [2008] NSWLEC 281 Cooper Brookes (Wollongong) Pty Limited v the Federal Commissioner of Taxation (1981) 147 CLR 297 Grigorakis v Bayside Council [2016] NSWLEC 1573 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Wentworth Securities Ltd v Jones [1980] AC 74 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63 Category: Principal judgment Parties: Benjamin Barrak (Appellant) City of Parramatta Council (Respondent) Representation: Counsel: Mr P Clay SC (Appellant) Mr S Nash and Mr T Liu, barristers (Respondent)