Georges River letterhead design_HEADER

EXTRAORDINARY Meeting

Notice of Extraordinary Meeting

 

Thursday, 11 August 2016

 

 

8 August 2016

 

 

Mr John Rayner

 

An Extraordinary Council Meeting will be held at Hurstville Civic Centre, Council Chambers, MacMahon Street, Hurstville commencing at 5.00pm for consideration of the following business.

 

 

 

Ms G Connolly

General Manager

 

 

 

BUSINESS

1.      Acknowledgements of Traditional Custodians

2.      Apologies

2.      Disclosures of Interest

3       Council Report

          CCL057-16 Council ats Emad and Eva Nada - Land and Environment Court Judgment - Child Care Centre at 45 Ogilvy Street Peakhurst

         


Extraordinary Meeting

Summary of Items

Thursday, 11 August 2016

 

Council Reports

CCL057-16       Council ats Emad and Eva Nada - Land and Environment Court Judgment - Child Care Centre at 45 Ogilvy Street Peakhurst

(Report by General Counsel, Ms J Ware).................................................................. 2   

 


Georges River Council – Extraordinary Meeting -  Thursday, 11 August 2016                                                                 Page 2

3.      Council Reports

Item:                   CCL057-16        Council ats Emad and Eva Nada - Land and Environment Court Judgment - Child Care Centre at 45 Ogilvy Street Peakhurst 

Author:              General Counsel, Ms J Ware

Directorate:      Office of the General Manager

Matter Type:     Environment and Planning

 

 

 

Recommendation

(a)     That having regard to legal advice of Ian Hemmings SC, Council will not pursue an appeal against the decision of the Land & Environment Court, as previously resolved by the former Hurstville City Council.

(b)     That Council waive legal professional privilege over Mr Hemmings’ advice of 2 August 2016.

(c)     That Mr Hemmings’ advice is made public.

 

Executive Summary

1.      A development application for a 40 place childcare centre at 45 Ogilvy Street, Peakhurst (Property) was refused by Council on 19 November 2014.  Council defended the refusal in Court, at both a Court ordered s34 conference and a contested hearing.

2.      As part of the proceedings, Council engaged external lawyers, counsel and various experts.  Amended plans were submitted by the applicant as part of the Court process.

3.      On 28 July 2015, Commissioner O’Neill handed down “in principle” judgment granting consent to the amended proposal for a 37 place childcare centre at the Property subject to a satisfactory arrangement being reached with adjoining owners in relation to drainage (by way of easements).

4.      Following the decision, there was significant protestation from resident objectors.  On 21 October 2015, the former Hurstville City Council resolved to, “approve an appeal against the Development Application for the childcare centre”.

5.      An appeal could not be considered until the Court’s final decision in the proceedings was handed down on 21 July 2016. Any appeal must be lodged by 18 August 2016.

6.      Advice received from Mr Ian Hemmings SC on 2 August 2016 is that, “an appeal should not be taken against the Commissioner’s decision…any such appeal would fail…Council would be ordered to pay the costs of that unsuccessful appeal”.

7.      To date, Council has incurred over $130,000 in costs in the proceedings.  It is estimated that an appeal would cost at least a further $100,000.

8.      There are no grounds of appeal that can be identified.  As such an appeal is doomed to fail, it is considered that taking such proceedings is not in the public interest and would be an inappropriate use of Council’s funds. 

 

 

 

 

Background

 

Conciliation and Hearing

9.      The appeal was subject to a mandatory conciliation before Commissioner O’Neill on 19 February 2015.  In accordance with the Court process and procedure, resident objectors gave evidence at the conciliation as to their concerns relating to the development. A site inspection of the Property and the surrounding residences was taken.

10.    Agreement was not reached at the conciliation and the matter proceeded to a fully contested hearing on 4-5 June and 6 July 2015.  During the course of the Court proceedings, the applicant amended plans, with the most significant amendments being a reduction from 40 to 37 children, a raised kerb around the parking bay, the construction of a boundary fence raised to 2.4 metres enclosing the outdoor play area and a 4 metre high, 10.8 metre long acoustic screen.

11.    By the conclusion of the hearing, there was significant agreement between the experts in the various disciplines (planning, traffic and acoustics) as a consequence of the Court’s mandatory joint conferencing.  Agreement was not reached in relation to stormwater.

12.    The amendments were re-notified to all resident objectors and all submissions received were given to the Court as part of the Council’s defence of the appeal. 

 

Court’s Preliminary Finding

13.    The Commissioner considered the competing expert evidence on form and appearance of the development and concluded that it was satisfactory. Further, she found that the parking arrangements were satisfactory.  She decided that adverse acoustic impacts could be addressed by way of an acoustic fence/wall.  The Commissioner accepted Council’s engineer’s evidence regarding the necessity for a drainage easement for the proposal to allow the roof and surface runoff to drain via gravity to Johnstone Street.  Accordingly, the Commissioner, on 28 July 2015, handed down an “in principle” judgment indicating that the proposal was worthy of consent, subject to allowing the applicant the opportunity (through a s 40 easement application) to obtain the requisite easements.

14.    Following this preliminary finding, on 21 October 2015, Council resolved to, “.. approve an appeal…”

 

15.    The applicant subsequently took a different course.  Rather than proceeding down the s 40 route, the applicant obtained the assistance of a new hydraulic engineer who proposed an alternative stormwater disposal system.

 

Development Consent

16.    The applicant was later granted leave to re-open the proceedings and the matter was heard on 11 and 26 April 2016, on drainage issues only.

17.    On 21 July 2016 development consent was granted subject to deferred commencement conditions, which related to the disposal of stormwater.

 

Advice on Appeal Prospects

18.    Having regard to the resolution of the former Hurstville City Council on 21 October 2015, advice was sought from Ian Hemmings, Senior Counsel, as to whether there are any grounds to appeal the decision pursuant to s 56A of the Land & Environment Court Act and, if such grounds exist, to advise on the Council’s prospects of such an appeal.

19.    Mr Hemmings’ advice dated 2 August 2016 is attached. Mr Hemmings concludes that, “an appeal should not be taken against the Commissioner’s decision.  In my opinion, any such appeal would fail.  The Council would be ordered to pay the costs of that unsuccessful appeal”.  In reaching this conclusion, the following comments by Mr Hemmings are highlighted:

a.   “A s 56A appeal is limited to a question of law that arose during the course of the proceedings.  It must then be demonstrated that there was an error in the determination of that question of law.  Finally that error must be said to vitiate, or materially affect, the decision.

b.   The Commissioner’s decision must be read fairly, and as a whole.  It is not permissible to take a pernickety, or fine toothcomb, approach to the judgment in order to find error.

c.   By her judgment the Commissioner dealt with each of the Contentions in a cogent manner.  She identified the relevant planning regime.  She summarised the evidence.  She properly identified the Contention, the relevant evidence and the submissions made.  She then made findings based upon that evidence (including the acceptance of the agreement by the experts).

d.   The objectors’ potential additional grounds arise in relation to failure to adequately consider the objectors’ concerns.  They also raise an apprehension of bias…It forms no part of the Commissioner’s duty to give reasons, nor of her consideration of the application, to descend into the detail of every element of every objection made by the objectors…As I understand it, far from excluding the residents, the Commissioner in fact acceded to the Council’s request (and against the opposition of the applicant) that the amendments made in 2015 required re-notification.  That re-notification facilitated for the further hearing of the objectors.

e.   If there is an apprehension of bias, that concern must be raised with the Commissioner. The Court will not consider an allegation of bias made for the first time on appeal….I am not aware of any circumstances that might give rise to such an apprehension.  The applicant sought to amend the application during the course of the proceedings.  That is simply part of the Court process…It is indeed a course facilitated by the Court’s practice and procedures.

f.    In my opinion, no error on a question of law is disclosed in the judgment of Commissioner O’Neill.     

20.    Accordingly, legal advice provided by HWL Ebsworth, Steven Bervelling of Counsel and Ian Hemmings SC has unanimously reached the same conclusion – that there is no error of law in the Commissioner’s judgment and there is no resultant avenue to appeal the decision. 

21.    Furthermore, even if an error on a question of law that vitiates a decision can be found, it must be recalled that in almost all circumstances, the consequence of an appeal under s 56A will be to remit the matter back to the Commissioner for determination in accordance with the law.  As a result, real consideration must be given as to whether the correction of the legal error is one that will result in a different decision on the merits.

 

Costs

22.    There are no grounds to appeal the Court’s decision.  Any proceedings commenced are doomed to fail.  Council would most likely also be ordered to pay the applicant’s costs of the appeal.  This exercise would cost the Council an estimated $100,000.  Council has already spent in excess of $130,000 in defending its refusal of the application.

 

Public Interest Considerations

23.    It is considered that it is not in the public interest to lodge an appeal against the Commissioner’s decision.  It is acknowledged that some residents in Ogilvy Street are disappointed with the Court’s judgment and the subsequent granting of development consent.  However, Council must, in considering the public interest, have regard to the common interest of ratepayers and residents of the entire Georges River Local Government Area, as distinct from matters that concern a very small segment of the community.

24.    It is submitted that Council has represented the smaller community through defending the Court proceedings, bringing about amendments to the proposal and putting the concerns of the residents to the Court.

25.    Expending an estimated further $100,000 of ratepayers’ money to take Court proceedings doomed to fail, at the request of a very small number of residents (less than 5) is not, on balance, in the overall interests of the wider Georges River community.

26.    A Court may well regard the Council’s actions poorly, perhaps even as an abuse of process or to have been taken for a vexatious purpose.  There could also be reputational damage to the newly formed Council. As a statutory authority, Council has an obligation to behave as a model litigant before the Court.  Arguably, this obligation could extend to a negative obligation – to not commence appeal proceedings that have no legal basis.

 

Conclusion

27.    In all of these circumstances, whilst it is acknowledged that the local residents are disappointed with the Court’s decision, it is not recommended that any further Court proceedings be taken in relation to this matter.

 

Operational Plan Budget

28.    Within budget allocation.

 

File Reference

LA14/38

 

 

 

ATTACHMENTS

Attachment View1

Judgment - 21 July 2016 - Nada - 45 Ogilvy Street Peakhurst

Attachment View2

Memorandum of Advice - Ian Hemmings SC - Nada - 45 Ogilvy Street Peakhurst

 


 

 

Georges River Council - Extraordinary Meeting - Thursday, 11 August 2016

CCL057-16          Council ats Emad and Eva Nada - Land and Environment Court Judgment - Child Care Centre at 45 Ogilvy Street Peakhurst

[Appendix 1]         Judgment - 21 July 2016 - Nada - 45 Ogilvy Street Peakhurst

 

 

Page 6

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

 

Georges River Council - Extraordinary Meeting - Thursday, 11 August 2016

CCL057-16          Council ats Emad and Eva Nada - Land and Environment Court Judgment - Child Care Centre at 45 Ogilvy Street Peakhurst

[Appendix 2]         Memorandum of Advice - Ian Hemmings SC - Nada - 45 Ogilvy Street Peakhurst

 

 

Page 34