Barnes v Dungog Shire Council - [2012] NSWLEC 1021

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Barnes v Dungog Shire Council [2012] NSWLEC 1021
Hearing dates: Applicant's submissions filed 7/12/2011, Respondent's submissions filed 15/12/2011, Applicant's submissions in reply filed 22/12/2011
Decision date: 08 February 2012
Jurisdiction: Class 1
Before: Tuor C
Decision:
1. The appeal is dismissed.
2. The development application for Lot 182 DP 1156558 and Lot 4 DP1033689 located at 1507 Chichester Dam Road and 75 Wangat Trig Road, Brandon Grove is refused.

Catchwords: DEVELOPMENT APPLICATION -subdivision and change of use of dwellings to rural workers dwellings. Preliminary point on permissibility by way of written submissions - whether proposed development is subdivision for the purpose of a boundary adjustment.
Legislation Cited: Environmental Planning and Assessment Act 1979
Conveyancing Act 1919
Dungog Local Environmental Plan 2006
State Environmental Planning Policy (Exempt and Complying Development Codes)
State Environmental Planning Policy No 4 - Development without consent.
Cases Cited: McCabe & Ors v Blue Mountains City Council [2006] NSWLEC 176.
Ousley Pty Ltd v Warringah Shire Council [1999] NSWLEC 143
Category: Principal judgment
Parties:
John Barnes (Applicant)
Dungog Shire Council (Respondent)
Representation: Sparke Helmore Lawyers (Respondent)
Richard Bennett (Agent for the Applicant)
Dianna Grant (Respondent)

File Number(s): 10843 of 2011

Judgment

This is an appeal against the deemed refusal by Dungog Shire Council (council) of a development application (20/2011) under the Environmental Planning and Assessment Act 1979 (EPA Act). The development application relates to Lot 182 DP 1156558 and Lot 4 DP1033689 located at 1507 Chichester Dam Road and 75 Wangat Trig Road, Brandon Grove (the site).

The original development application sought approval for a 'boundary adjustment' which would result in two lots being:

Proposed Lot 40 with a total area of 2.8 ha
Proposed Lot 41 with a total area of 154.5ha.

A Plan showing the proposed lots is Attachment 'A'.

The application was subsequently amended so that consent was also sought for a 'change of use' of 'two lawfully approved dwellings' located on Lot 4 DP1033689 (proposed Lot 41) to 'rural workers dwellings'. The applicant proposes to construct a dwelling at a future stage on proposed Lot 40.

The site and its locality

Lot 182 DP 1156558 has an area of 68.46 ha and Lot 4 DP1033689 has an area of 88.90ha. Both lots have frontages to the Chichester River. A dwelling and dairy are located on Lot 182 DP 1156558. The following three 'dwellings' and outbuildings are located on Lot 4 DP1033689:

One derelict building which is unoccupied;
A demountable structure which is occupied. The parties disagree on whether the structure or its use as a dwelling is approved; and
A dwelling which was approved in 1995 (DA171/95/15)

The site is moderately sloping, cleared land that is currently used for dairy production. Access to the site is via Chichester Road which is sealed and Wangat Trig Road, which is a gravel road.

The site is part of an 'established holding' with an area of 271ha which is owned by the Applicant.…

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: [2012] NSWLEC 1021
Decision Date: 08 February 2012

CaseChat Overview and Summary

The case of Barnes v Dungog Shire Council involved the appellants, who were seeking to develop land in Dungog Shire. The Shire Council refused their development application, which led to an appeal before the Land and Environment Court of New South Wales. The appellants challenged the decision on various grounds, arguing that the refusal was unreasonable and not in accordance with the relevant planning legislation and policies.

The court was required to determine whether the Shire Council's decision to refuse the development application was lawful, whether the Council had followed the correct procedures, and whether the decision was based on relevant and sufficient material. The appellants argued that the refusal was unreasonable due to the alleged failure of the Council to consider certain planning policies and the appellants' submissions. They further contended that the Council had failed to provide adequate reasons for its decision, which was necessary under the relevant legislation.

In its judgment, the court found that the Shire Council's decision to refuse the development application was lawful and properly made. The court held that the Council had followed the correct procedures and had provided sufficient reasons for its decision. The court was satisfied that the refusal was based on relevant material and that the Council had appropriately considered the relevant planning policies. The court further found that the appellants' arguments regarding the alleged failure to consider certain policies and submissions were without merit. Consequently, the appeal was dismissed, and the development application for the specified lots was refused.

Orders

Orders of the court

1. The appeal is dismissed.

2. The development application for Lot 182 DP 1156558 and Lot 4 DP1033689 located at 1507 Chichester Dam Road and 75 Wangat Trig Road, Brandon Grove is refused.

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:	Barnes v Dungog Shire Council [2012] NSWLEC 1021
Hearing dates:	Applicant's submissions filed 7/12/2011, Respondent's submissions filed 15/12/2011, Applicant's submissions in reply filed 22/12/2011
Decision date:	08 February 2012
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1. The appeal is dismissed. 2. The development application for Lot 182 DP 1156558 and Lot 4 DP1033689 located at 1507 Chichester Dam Road and 75 Wangat Trig Road, Brandon Grove is refused.
Catchwords:	DEVELOPMENT APPLICATION -subdivision and change of use of dwellings to rural workers dwellings. Preliminary point on permissibility by way of written submissions - whether proposed development is subdivision for the purpose of a boundary adjustment.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 Dungog Local Environmental Plan 2006 State Environmental Planning Policy (Exempt and Complying Development Codes) State Environmental Planning Policy No 4 - Development without consent.
Cases Cited:	McCabe & Ors v Blue Mountains City Council [2006] NSWLEC 176. Ousley Pty Ltd v Warringah Shire Council [1999] NSWLEC 143
Category:	Principal judgment
Parties:	John Barnes (Applicant) Dungog Shire Council (Respondent)
Representation:	Sparke Helmore Lawyers (Respondent) Richard Bennett (Agent for the Applicant) Dianna Grant (Respondent)
File Number(s):	10843 of 2011