Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353

Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353

The Court held, by majority, that clause 22(2) of the Woollahra Local Environmental Plan 1995 was a development standard, not an absolute prohibition, and therefore amenable to relaxation under SEPP 1. The appeal route was unavailable as Mr Lowy was not wrongly refused joinder as a party, and had sufficient interest for prerogative relief but, as no error of law was found by a majority, certiorari was not granted.

Parties
Claimant/appellant: Frank Lowy; First Opponent/first Respondent: The Land and Environment Court of NSW; Second Opponent/second Respondent: Salvatore Paino; Third Opponent/third Respondent: Woollahra Municipal Council
Jurisdiction
Australia
Judgment Date
01 November 2002
Procedural Posture
Appeal and Summons for Prerogative Relief / Court of Appeal Judgment
Outcome
Appeal and summons dismissed; extension of time and leave to appeal granted but appeal dismissed; costs awarded against Mr Lowy.
Legal Topics
Development Consent, Jurisdictional Error, Prerogative Relief, Appellate Rights, Foreshore Building Line, Development Standards
Administrative Law Planning Law Local Government Development Consent Jurisdictional Error Prerogative Relief Appellate Rights Foreshore Building Line +1 more

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Parties

Frank Lowy

Claimant/appellant

The Land and Environment Court of NSW

First Opponent/first Respondent

Salvatore Paino

Second Opponent/second Respondent

Woollahra Municipal Council

Third Opponent/third Respondent

Procedural Posture

Appeal and Summons for Prerogative Relief / Court of Appeal Judgment

Legal Issues

  1. 1 Whether clause 22(2) of the Woollahra Local Environmental Plan 1995 is a development standard amenable to dispensation under State Environmental Planning Policy No 1 (SEPP 1)
  2. 2 Whether an objector granted leave to appear in Land and Environment Court proceedings is a 'party' entitled to appeal
  3. 3 Whether prerogative relief (certiorari) lies against decisions of the Land and Environment Court

Ratio Decidendi

The Court held, by majority, that clause 22(2) of the Woollahra Local Environmental Plan 1995 was a development standard, not an absolute prohibition, and therefore amenable to relaxation under SEPP 1. The appeal route was unavailable as Mr Lowy was not wrongly refused joinder as a party, and had sufficient interest for prerogative relief but, as no error of law was found by a majority, certiorari was not granted.

Court Disposition

Appeal and summons dismissed; extension of time and leave to appeal granted but appeal dismissed; costs awarded against Mr Lowy.

Orders

  • Extension of time to apply for leave to appeal from Cowdroy J granted, subject to filing a notice of appeal within 7 days; leave to appeal granted; appeal dismissed with costs.
  • Summons otherwise dismissed.