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

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

The Commissioner erred on a question of law by treating the proposed development's reliance on existing piles partly located on adjoining land as requiring the adjoining owner's consent and as a jurisdictional hurdle, when the evidence established that no work was proposed on Lot 44 and the development application did not relate to that land. The Commissioner also denied Ms Stokes procedural fairness by disposing of the Class 1 appeal on the owner's consent issue, which was not raised in Council's contentions or put to the parties for submissions. Those errors required the appeal to be upheld and the proceedings remitted.

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) on Questions of Law / Appeal Against Commissioner Bish's Decision Dismissing a Development Application Appeal
Outcome
Appeal upheld; Commissioner's orders set aside; proceedings remitted to Commissioner Bish; no order as to costs.
Legal Topics
['development Applications' "owner's Consent" 'jurisdictional Error' 'procedural Fairness' 'conditions of Development Consent' 'remitter']
['planning and Environment Law' 'administrative Law'] ['development Applications' "owner's Consent" 'jurisdictional Error' 'procedural Fairness' 'conditions of Development Consent' 'remitter']

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Procedural Posture

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) on Questions of Law / Appeal Against Commissioner Bish's Decision Dismissing a Development Application Appeal

Legal Issues

  1. 1 ["Whether the Commissioner erred in finding that the Court lacked jurisdiction to grant consent to DA 404/2017 because owner's consent from the adjoining landowner was not provided." 'Whether cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) required consent from the owner of Lot 44 where no works were proposed on that land.' 'Whether reliance on existing piles partly located on adjoining land raised a jurisdictional issue.' 'Whether jurisdiction depended on the piles being structurally isolated from the proposed development.' "Whether the Commissioner denied procedural fairness by dismissing the appeal on an owner's consent issue not raised in Council's Statement of Facts and Contentions or at the hearing."]

Ratio Decidendi

The Commissioner erred on a question of law by treating the proposed development's reliance on existing piles partly located on adjoining land as requiring the adjoining owner's consent and as a jurisdictional hurdle, when the evidence established that no work was proposed on Lot 44 and the development application did not relate to that land. The Commissioner also denied Ms Stokes procedural fairness by disposing of the Class 1 appeal on the owner's consent issue, which was not raised in Council's contentions or put to the parties for submissions. Those errors required the appeal to be upheld and the proceedings remitted.

Court Disposition

Appeal upheld; Commissioner's orders set aside; proceedings remitted to Commissioner Bish; no order as to costs.

Orders

  • ['The appeal is upheld.' 'Orders (1), (2) and (3) made by Commissioner Bish on 3 April 2019 are set aside.' 'The proceedings are remitted to Commissioner Bish to be determined in accordance with these reasons for judgment.' 'No order as to costs.']