Baker v Gosford City Council - [2004] NSWLEC 167

Land and Environment Court

of New South Wales

CITATION: Baker v Gosford City Council [2004] NSWLEC 167

PARTIES:
APPLICANT:
Baker
RESPONDENT:
Gosford City Council

FILE NUMBER(S): 10518 of 2003

CORAM: Bignold J

KEY ISSUES: Question of Law :- preliminary questions-whether LEP and SEPP No 5 contain inconsistency-whether pending development appeal may be determined as if supervening LEP had not been made.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

CASES CITED: Butler v Attorney General (Victoria) 1961 106 CLR 268;
Coff's Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 331;
Mekol Pty Ltd v Baulkham Hills Council (No 2) (1971) 23 LGRA 330;
Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630;
Randwick Council v Janlz (1976) 35 LGRA 70;
Rose v Hvric (1963) 108 CLR 353;
Rothwell v North Sydney Council (2000) 108 LGERA 361;
South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603

DATES OF HEARING: 07/04/2004

DATE OF JUDGMENT: 04/16/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Craig, QC with S Berveling, Barrister
SOLICITORS
Conditsis and Associates
RESPONDENT:
Mr P Tomasetti, Barrister
SOLICITORS
P Donnellan & Co.

JUDGMENT:

IN THE LAND AND Matter No

. . 10518 of 2003

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

16 April 2004

EDWIN BAKER

Applicant

GOSFORD CITY COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. In the course of an unconcluded hearing by Commissioner Moore of an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council’s deemed refusal of a development application for the development of land known as lot 5 DP 858444 by a 90 unit retirement village, the Applicant raised a number of questions of law.

2. On 25 March 2004, when the hearing was adjourned until 10 May 2004, the Commissioner gave directions in respect of the questions of law that had been raised.

3. Pursuant to those directions, the Applicant by Notice of Motion filed 29 March 2004 has sought the separate determination of the following questions of law:

1. Is, on its proper construction, Gosford Local Environmental Plan No. 443 ( the LEP ) inconsistent with State Environmental Planning Policy No. 5 ( SEPP 5 )?

2. Does clause 5 of SEPP 5 render the LEP inapplicable in the determination of the subject development application?

3. Are the provisions of the LEP to be applied when determining the subject development application, having regard to section 34(4) of the Environmental Planning and Assessment Act 1979?

4. The hearing of these questions of law which had been referred to the Chief Judge pursuant to the Land and Environment Court Act 1979, s 36(5) took place on 7 April 2004 when judgment was reserved.

B. THE RELEVANT FACTS

5. The facts relevant to the determination of questions of law can be noted as follows:

1. The Applicant’s development application which was lodged with the Council on 21 June 2002 was for the…

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: [2004] NSWLEC 167
Decision Date: 04/16/2004

CaseChat Overview and Summary

In the matter of Baker v Gosford City Council, the Land and Environment Court of New South Wales was required to determine several questions of law raised by the applicant, Baker, regarding the consistency between the Gosford Local Environmental Plan No. 443 (LEP) and State Environmental Planning Policy No. 5 (SEPP 5). The court had to decide whether there was an inconsistency between the LEP and SEPP 5, whether SEPP 5 rendered the LEP inapplicable, and whether the LEP should be applied in determining the applicant's development application, considering the Environmental Planning and Assessment Act 1979, s 34(4). The court concluded that there was no relevant inconsistency between the LEP and SEPP 5, and that the provisions of the LEP should be applied when determining the development application. The court's determinations of the questions of law were remitted to the Commissioner, and the question of costs was reserved.

Orders