Asquith v Clarence Valley Council - [2011] NSWLEC 1246

Land and Environment Court

New South Wales

Medium Neutral Citation: Asquith v Clarence Valley Council [2011] NSWLEC 1246
Hearing dates: 14 July 2011
Decision date: 19 August 2011
Jurisdiction: Class 1
Before: Pearson C
Decision:
Appeal dismissed

Catchwords: Development application - dwelling house - consolidation of lots - whether existing parcel
Legislation Cited: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Copmanhurst Local Environmental Plan 1990
Copmanhurst Shire Council Interim Development Order No 1
State Environmental Planning Policy No 1 - Development Standards
Cases Cited: Atkins v Maitland City Council [2010] NSWLEC 36
Matic v Mid-Western Regional Council [2008] NSWLEC 113
Wehbe v Pittwater Council [2007] NSWLEC 827
Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46
Category: Principal judgment
Parties: Catherine Asquith (Applicant)
Clarence Valley Council (Respondent)
Representation: Mr A McInerney (Respondent)
Mr P Asquith (agent) (Applicant)
Mr P Roland, Foott, Law & Co (Respondent)

File Number(s): 10231 of 2011

Judgment

This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application DA2010/0428 for the erection of a dwelling on lots 7-19 and 41-50 of Section 3, DP1882 at Mountain View (the proposed development site).

The proposed development site comprises 23 lots, each of approximately 1,000sqm, and has a total area of 2.75 ha. The applicant proposes to consolidate those 23 lots into one allotment. The proposed development site is part of an area of land of approximately 15ha held by the applicant (the applicant's land), which comprises lots 1-55 in Section 3, lots 1-16 in Section 4, lots 1-26 in Section 5, and part of former Section 6, in DP1882, which was created by registration in 1887. Section 6 was subdivided into what is now lots 61 and 62, and the applicant no longer owns lot 62. The lots making up the applicant's land, and the proposed development site, are shown below:

The applicant's land is approximately 15km north of Grafton, in an area of generally open rural land, which slopes towards the Clarence River. The applicant's land has frontage to Red Lane, Summerland Way and Clarence Way, which are made roads. The proposed development site fronts Clarence Way. On the opposite side of Clarence Way (to the north east) there are a number of rural residential lots. To the south are a car breaking yard (on Boneyard Lane) and a former power station.

The applicant lodged the development application seeking consent to "erect dwelling on subject land" on 23 June 2010, following meetings with staff of the respondent's Development Management Unit on 10 March 2010 and 7 April 2010. On 6 July 2010 the respondent requested further information, including a request for an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP No 1). On 13 July 2010 the applicant advised that the further information would not be provided, and requested that the Council "determine the DA as made". The respondent…

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.

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Details

Case: [2011] NSWLEC 1246
Decision Date: 19 August 2011

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Asquith appealed against Clarence Valley Council in relation to a dispute over the council's decision to deny his application for development approval. The central issue was whether the council's decision was lawful and reasonable, considering the statutory framework and relevant policies. Asquith argued that the decision was not only unlawful but also unreasonable, as it failed to consider relevant environmental factors and contravened the planning scheme. The court examined the evidence provided by both parties, including expert reports and submissions, to determine whether the council had exercised its discretion appropriately.

The primary legal issues before the court were whether the council's decision was lawful and whether it was reasonable. Asquith contended that the council had failed to properly consider the impact of the proposed development on the local environment and had acted in a manner that was not in accordance with the planning scheme. The council defended its decision, asserting that it had followed the relevant legislative and policy framework, and that the decision was both lawful and reasonable. The court needed to determine whether the council's decision was justified under the applicable legislation and policies.

The court found that the council had adequately considered the relevant factors and had exercised its discretion in a manner consistent with the law. The evidence demonstrated that the council had appropriately weighed the environmental impacts and had not acted in a manner that contravened the planning scheme. The court held that the council's decision was both lawful and reasonable, and accordingly dismissed the appeal. As a result, the decision of the council to deny the development application was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Asquith v Clarence Valley Council [2011] NSWLEC 1246
Hearing dates:	14 July 2011
Decision date:	19 August 2011
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal dismissed
Catchwords:	Development application - dwelling house - consolidation of lots - whether existing parcel
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Copmanhurst Local Environmental Plan 1990 Copmanhurst Shire Council Interim Development Order No 1 State Environmental Planning Policy No 1 - Development Standards
Cases Cited:	Atkins v Maitland City Council [2010] NSWLEC 36 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46
Category:	Principal judgment
Parties:	Catherine Asquith (Applicant) Clarence Valley Council (Respondent)
Representation:	Mr A McInerney (Respondent) Mr P Asquith (agent) (Applicant) Mr P Roland, Foott, Law & Co (Respondent)
File Number(s):	10231 of 2011