Anderson v Muckle - [2001] NSWLEC 236

Reported Decision: (2001) 116 LGERA 442
APPEAL ALLOWED

Land and Environment Court

of New South Wales

CITATION: Anderson v Muckle & Anor [2001] NSWLEC 236

PARTIES:
APPLICANT
Anderson
RESPONDENT
Muckle & Anor

FILE NUMBER(S): 40069 of 2000

CORAM: Cowdroy J

KEY ISSUES: Development Consent :- breach of condition of development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 123, s 124

CASES CITED: ACR Trading Pty Limited and Anor v Fatsel Pty Limited (1987) 11 NSWLR 67;
Leichhardt Municipal Council v Gillespies Cranes Nominees Pty Ltd [1998] NSWLEC 71 ;
Warringah Shire Council v Sedevic (1987) 10 NSWLR 335;
Willoughby City Council v Sydney Water Corporation [1999] NSWLEC 131;
Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17;
Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51

DATES OF HEARING: 26/9/01, 27/9/01, 28/9/01, 2/10/01, 3/10/01

DATE OF JUDGMENT:
10/25/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Fraser (Barrister)
SOLICITORS
P J Donnellan & Co
FIRST RESPONDENT
Mr T Howard (Barrister)
SOLICITORS
Harris Wheeler
SECOND RESPONDENT
Mr J Maston (Barrister)
SOLICITORS
Sparke Helmore

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40069 of 2000
CORAM: Cowdroy J
DECISION DATE: 25/10/01

Donald Anderson and Francis Anderson

Lester John Muckle

Port Stephens Council

Second Respondent

JUDGMENT

Facts

1. In these proceedings the applicants seek a declaration that the first respondent has failed to comply with a development consent granted by the second respondent, and consequential injunctive orders. The claim is made pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and relief is sought pursuant to s 124 of the EP&A Act. The applicants’ claims against the second respondent were abandoned during the hearing.

2. The applicants are the owners of land at Salt Ash known as lot 9 (“lot 9”) and the first respondent is the owner of lot 8 (“lot 8”) in deposited plan 240103. Although there is no evidence of the size of each lot, they comprise semi-rural lots. A dwelling has been erected on lot 9. Lot 8 and lot 9 are bounded on the north by Salt Ash Avenue and on the south by Richardson Road. Lot 9 is bounded on the west by another lot (“lot 10”) and a drain known as Moors Drain. Lot 8 is bounded to the east by three lots known as lots 7, 6 and 5. Such lots are low lying and are subject to flooding during conditions of heavy rain.

3. On 5 March 1996 the second respondent, Port Stephens Council (“the council”), issued development consent D164/96 (“the consent”) to the first respondent to fill lot 8 to a depth of approximately one metre. Pursuant to the consent fill was placed over such land by the first respondent. The fill extends from the southern boundary of lot 8 near Richardson Road to the northern boundary near Salt Ash Avenue and has virtually covered the full width…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Muckle

Details

AGLC: Anderson v Muckle [2001] NSWLEC 236
Case: [2001] NSWLEC 236
Decision Date: 10/25/2001

CaseChat Overview and Summary

In Anderson v Muckle, Donald Anderson and Francis Anderson sought a declaration that Lester John Muckle had breached a condition of development consent granted by the Port Stephens Council. The applicants, owners of lot 9, alleged that the first respondent, owner of lot 8, had obstructed the natural flow of surface water by filling lot 8, in breach of a condition in the consent. The Court had to determine whether the filling of lot 8 by the first respondent had obstructed the water drainage system, as per the condition in the consent, and if so, what relief should be granted.

The court found that the term ‘water drainage system’ should not be interpreted in an overly technical manner and accepted that the natural flow of surface water across lot 8 constituted a water drainage system. The court concluded that the fill on lot 8 had obstructed the flow of surface water from lot 9 to lot 7, thus breaching the condition in the consent. The court found the breach to be both present and continuing, and ordered that the proceedings be adjourned for a view and submissions relating to the restoration of drainage to lot 9.

The court ordered that the proceedings be listed for call over to allocate a date for a view and that costs be reserved. The decision highlights the importance of considering the practical application of development consent conditions and the need for developers to maintain existing water drainage systems.

Orders