Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126

Land and Environment Court New South Wales

Medium Neutral Citation: Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 Hearing dates: 13 August 2019 Date of orders: 03 September 2019 Decision date: 03 September 2019 Jurisdiction: Class 1 Before: Moore J Decision: (1) The appeal is upheld; (2) The decision and orders (2) and (3) of Commissioner Horton of 19 March 2019 are set aside; (3) The proceedings are remitted to a Commissioner or Commissioners (other than Commissioner Horton) to be determined in accordance with these reasons for judgment; (4) The Respondent is to pay the Applicant's costs of the appeal but is to have a certificate pursuant to s 6(1AA) of the Suitors' Fund Act 1951 if so qualified; and (5) The matter is listed at 9.00 am on 5 September 2019 before the Registrar for directions. Catchwords: APPEAL - refusal of application for approval of boarding house pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) - issue of whether manager's private open space complied with the SEPP - Commissioner held that the SEPP mandated refusal for non-compliance - ground of appeal that the Commissioner misconstrued the obligation under the SEPP - Council concedes ground made out - ground is made out - Commissioner also refused the proposed development on the basis that it did not demonstrate design excellence as required by cl 7.7(3) of the Blacktown Local Environmental Plan 2015 - two grounds of appeal asserted that Commissioner failed to give reasons for conclusion concerning design excellence - Council concedes grounds made out - grounds are made out - complaint that Commissioner denied the applicant procedural fairness concerning both manager's private open space and design excellence - Council concedes ground made out - ground is made out - application for an exclusionary remitter on the basis the Commissioner would not bring an open mind to the matters of the manager's private open space and design excellence - no basis to complain that the Commissioner could not bring an open mind to the issue of the manager's private open space - reasonable apprehension to conclude that the Commissioner would not bring an open mind to the issue of design excellence - appeal upheld - exclusionary remitter ordered. COSTS - costs ordinarily follow the event in s 56A appeals - Appellant entitled to its costs - application by the Council for a certificate pursuant to s 6(1AA) of the Suitors' Fund Act 1951 on the basis that the Council did not cause or contribute to the errors forming the basis for the successful appeal - appropriate to order that the Council have a certificate if otherwise entitled Legislation Cited: Land and Environment Court Act 1979, ss 38 and 56A Suitors' Fund Act 1951, s 6(1AA) Blacktown Local Environmental Plan 2015, cl 7.7 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 29 Cases Cited: Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hall v O'Brien [2015] NSWLEC 200 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Madss Properties No 2 Pty Ltd ATF Newtown Property Trust v Blacktown City Council [2019] NSWLEC 110 Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47 Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253 Category: Principal judgment Parties: Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (Applicant) Blacktown City Council (Respondent) Representation: Counsel: Mr P Clay SC/Ms L Nurpuri, barrister (Applicant) Ms A Pearman, barrister (Respondent)