Archibuild Australia v Sydney City Council [1988] NSWLEC 127

Archibuild Australia v Sydney City Council [1988] NSWLEC 127

No objection within the meaning of s.317M of the Local Government Act had been lodged with the Council or referred to the Court, so there was no foundation for the jurisdiction the Assessor purported to exercise. The Assessor therefore made an error of law by hearing and determining the application. The Assessor also erred by proceeding ex parte without satisfying himself as to service or considering leave to proceed, contrary to the Court rules and procedural fairness.

Jurisdiction
Australia
Judgment Date
15 July 1988
Procedural Posture
Appeal to the Land and Environment Court From Orders Made by an Assessor on an Application Under S.317 M of the Local Government Act Concerning Refusal of a Building Application / Appeal on Questions of Law Under S.56 a of the Land and Environment Court Act, 1979
Outcome
Appeal allowed; Assessor's orders set aside; applicant's application dismissed.
Legal Topics
['building Approval' 'objection Under S.317 M of the Local Government Act' 'jurisdiction of Assessor' 'service of Proceedings' 'natural Justice' 'appeal on a Question of Law']
['planning and Environment' 'local Government' 'administrative Law' 'civil Procedure'] ['building Approval' 'objection Under S.317 M of the Local Government Act' 'jurisdiction of Assessor' 'service of Proceedings' 'natural Justice' 'appeal on a Question of Law']

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Procedural Posture

Appeal to the Land and Environment Court From Orders Made by an Assessor on an Application Under S.317 M of the Local Government Act Concerning Refusal of a Building Application / Appeal on Questions of Law Under S.56 a of the Land and Environment Court Act, 1979

Legal Issues

  1. 1 ['Whether the Assessor had jurisdiction to entertain the application under s.317M of the Local Government Act where no separate objection had been lodged with the Council and referred to the Court.' 'Whether the Assessor erred in law by proceeding in the absence of the Council without being satisfied that the application had been served or granting leave to proceed.' 'Whether failure to comply with the service rules was a question of law for the purposes of an appeal under s.56A of the Land and Environment Court Act, 1979.']

Ratio Decidendi

No objection within the meaning of s.317M of the Local Government Act had been lodged with the Council or referred to the Court, so there was no foundation for the jurisdiction the Assessor purported to exercise. The Assessor therefore made an error of law by hearing and determining the application. The Assessor also erred by proceeding ex parte without satisfying himself as to service or considering leave to proceed, contrary to the Court rules and procedural fairness.

Court Disposition

Appeal allowed; Assessor's orders set aside; applicant's application dismissed.

Orders

  • ['Appeal allowed.' 'Orders made by the Court on 26 February 1988 set aside.' "Applicant's application filed 24 December 1987 dismissed." "Appellant Council's costs of the appeal to be paid by the Respondent (Applicant)." "Respondent (Applicant) to have an indemnity certificate under the Suitors' Fund Act in respect...