Todbern Pty Limited v Hurstville City Council and Anor. [2001] NSWLEC 145

Todbern Pty Limited v Hurstville City Council and Anor. [2001] NSWLEC 145

Condition 42 was mandatory because the applicable Local Government Act and Regulation provisions required compliance with relevant BCA standards. The Applicant's additional grounds failed because the Forest Road boundary of lot 4 DP 869014 was relevantly the allotment boundary for BCA cl D3.2(c)(i), and could qualify as the principal public entrance for cl D3.2(c)(iv); the Commissioner's factual finding on that point disclosed no error of law. The original grounds other than the s 82 ground also failed. However, the Commissioner should have entertained and determined the Applicant's objection under Local Government Act 1993, s 82; failure to do so meant he had not completed his...

Jurisdiction
Australia
Judgment Date
06 July 2001
Procedural Posture
Appeal Pursuant to Land and Environment Court Act 1979, S 56 a From Dismissal of an Appeal Under Local Government Act 1993, S 176 / Judgment on Appeal
Outcome
Appeal allowed on ground 2 only; Commissioner's orders set aside and proceedings remitted for determination of the Applicant's Local Government Act 1993, s 82 objection.
Legal Topics
['disabled Access Requirements Under the Building Code of Australia' 'mandatory Building Approval Conditions' 'section 56 a Appeal Limited to Errors of Law' 'jurisdiction to Consider Objection Under Local Government Act 1993, S 82' 'external Access From Allotment Boundary and Principal Public Entrance']
['planning and Environment' 'local Government' 'building Regulation' 'administrative Law'] ['disabled Access Requirements Under the Building Code of Australia' 'mandatory Building Approval Conditions' 'section 56 a Appeal Limited to Errors of Law' 'jurisdiction to Consider Objection Under Local Government Act 1993, S 82' 'external Access From Allotment Boundary and Principal Public Entrance']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Pursuant to Land and Environment Court Act 1979, S 56 a From Dismissal of an Appeal Under Local Government Act 1993, S 176 / Judgment on Appeal

Legal Issues

  1. 1 ['Whether Condition 42 requiring disabled access from Forest Road complying with BCA cl D3.2 was a mandatory condition of building approval.' 'Whether the Court, on a Local Government Act 1993, s 176 appeal, had power or jurisdiction to consider an objection under Local Government Act 1993, s 82.' 'Whether BCA cl D3.2(c)(i) and cl D3.2(c)(iv) could apply to the Super-Centre development having regard to the allotment boundary and alleged principal public entrance.' 'Whether the Commissioner erred in law in applying the BCA, construing cl D3.2, addressing principal public entrance, and treating equitable cost sharing as outside the appeal.']

Ratio Decidendi

Condition 42 was mandatory because the applicable Local Government Act and Regulation provisions required compliance with relevant BCA standards. The Applicant's additional grounds failed because the Forest Road boundary of lot 4 DP 869014 was relevantly the allotment boundary for BCA cl D3.2(c)(i), and could qualify as the principal public entrance for cl D3.2(c)(iv); the Commissioner's factual finding on that point disclosed no error of law. The original grounds other than the s 82 ground also failed. However, the Commissioner should have entertained and determined the Applicant's objection under Local Government Act 1993, s 82; failure to do so meant he had not completed his...

Court Disposition

Appeal allowed on ground 2 only; Commissioner's orders set aside and proceedings remitted for determination of the Applicant's Local Government Act 1993, s 82 objection.

Orders

  • ['Appeal allowed.' 'Set aside the orders made by the Commissioner in his judgment of 19 July 2000.' "Remit the proceedings to the Commissioner for the completion of the outstanding adjudication required in respect of the Applicant's objection pursuant to the LG Act, s 82 (as set forth in Exhibit J)." 'Exhibits be...