Stokes v Waverley Council (No 2) [2019] NSWLEC 174

Land and Environment Court New South Wales

Medium Neutral Citation: Stokes v Waverley Council (No 2) [2019] NSWLEC 174 Hearing dates: 7 August 2019 Date of orders: 15 November 2019 Decision date: 15 November 2019 Jurisdiction: Class 1 Before: Robson J Decision: The Court orders: (1) The appeal is upheld. (2) Orders (1), (2) and (3) made by Commissioner Bish on 3 April 2019 are set aside. (3) The proceedings are remitted to Commissioner Bish to be determined in accordance with these reasons for judgment. (4) No order as to costs. Catchwords: APPEAL – appeal against a Commissioner's judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.12, 4.15, 4.16, 4.17, 77 Environmental Planning and Assessment Regulation 2000 (NSW) cll 49, 50, Sch 1 Land and Environment Court Act 1979 (NSW) s 56A Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 233 LGERA 170 Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118; (2018) 236 LGERA 256 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20 Owners Strata Plan 37762 v Pham [2005] NSWLEC 500 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Stokes v Waverley Council [2019] NSWLEC 1137 Category: Principal judgment Parties: Stephanie Stokes (Appellant) Waverley Council (Respondent) (Submitting Appearance) Representation: Counsel: A Galasso SC with J Farrell (Appellant) M Hanna, solicitor (Respondent) (Submitting Appearance)