Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35

Wechsler v Sydney City Council (No 2) [2015] NSWLEC 35

The Commissioner denied the Applicant procedural fairness by refusing to permit him to give factual evidence while treating statements from residents and a planner as evidence, by making a statement without apparent legal foundation that objectively could dissuade a self-represented litigant from pursuing a course in the presentation of his case, and by rejecting aspects of a compromise proposal without giving the Applicant an opportunity to give evidence about it. Those matters, individually and collectively, sustained the appeal, so the Commissioner's decision refusing the remaining modifications could not stand.

Jurisdiction
Australia
Judgment Date
09 March 2015
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) From a Commissioner's Decision on a Development Consent Modification Appeal / Decision on Appeal
Outcome
Appeal upheld; the Commissioner's decision was set aside insofar as it refused the modification sought; the matter was remitted for rehearing and determination; costs were reserved.
Legal Topics
['modification of Development Consent' 'appeal on a Question of Law' 'procedural Fairness' 'natural Justice' 'class 1 Proceedings']
['planning and Environment Law' 'administrative Law'] ['modification of Development Consent' 'appeal on a Question of Law' 'procedural Fairness' 'natural Justice' 'class 1 Proceedings']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) From a Commissioner's Decision on a Development Consent Modification Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether the Commissioner denied procedural fairness by refusing to allow the Applicant to give evidence and confining him to submissions.' "Whether the Commissioner's statement that she might remove the sixth floor lacked legal foundation and affected the Applicant's conduct of his case." 'Whether procedural fairness was denied when a compromise proposal was rejected after leave to amend was refused and without giving the Applicant an opportunity to give evidence about it.']

Ratio Decidendi

The Commissioner denied the Applicant procedural fairness by refusing to permit him to give factual evidence while treating statements from residents and a planner as evidence, by making a statement without apparent legal foundation that objectively could dissuade a self-represented litigant from pursuing a course in the presentation of his case, and by rejecting aspects of a compromise proposal without giving the Applicant an opportunity to give evidence about it. Those matters, individually and collectively, sustained the appeal, so the Commissioner's decision refusing the remaining modifications could not stand.

Court Disposition

Appeal upheld; the Commissioner's decision was set aside insofar as it refused the modification sought; the matter was remitted for rehearing and determination; costs were reserved.

Orders

  • ['Appeal upheld.' 'Set aside the decision of Morris C delivered on 3 July 2013, insofar as that decision refused the modification sought in the proceedings before her.' 'Remit the matter for rehearing and determination by a Commissioner of the Court appointed by the Chief Judge pursuant to s 31(1) of the Land and...