Baxter v Northern Beaches Council - [2016] NSWLEC 1390

Land and Environment Court

New South Wales

Medium Neutral Citation: Baxter v Northern Beaches Council [2016] NSWLEC 1390
Hearing dates: 27 June 2016
Date of orders: 06 September 2016
Decision date: 11 July 2016
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal upheld - see [70]

Catchwords: MODIFICATION APPLICATION: Residential subdivision; lot comprises two zones; boundary adjustment; water management; zone objectives; conditions
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Conveyancing Act 1919
Pittwater Local Environmental Plan 2014
Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
King & ors v Bathurst Regional Council (2006) 150 LGERA 362
Newbury DC v Secretary of State for the Environment [1981] AC 578
Category: Principal judgment
Parties: Thomas Baxter (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
Applicant: Mr N Eastman
Respondent: Ms J Reid
Solicitors:
Applicant: Storey & Gough
Respondent: King & Wood Mallesons

File Number(s): 155894 of 2016

Judgment

COMMISSIONER: In June 2014 Development Application N0209/14 was lodged with Pittwater Council for a residential subdivision and associated civil works at 2 Fern Creek Road, Warriewood (the site). Before the DA was fully assessed by council, the applicant lodged an appeal against council’s deemed refusal with the Land and Environment Court. Pursuant to s 34 of the Land and Environment Court Act 1979, the parties reached an agreement and the Court granted the orders sought by the parties.
Development consent N0209/14 for a 22 residential lot subdivision under Community Title, and associated civil works, was issued on 2 June 2015. A modification application under s96 of the Environmental Planning and Assessment Act 1979 (EPA Act) modifying a condition of consent concerning s 94 contributions has already been approved.

Proposal

Modification Application N0209/14/S96/2 seeks to modify the original consent by:

Deleting the detention basin servicing the subdivision and constructing individual on-site detention systems described as ‘rain gardens’ on all residential lots,

Creating a new residential lot on the site of the deleted detention basin thereby increasing the number of residential allotments from 22-23,

Deleting the approved “Community Property” allotment along the western or rear boundary of the subdivision,

Deletion of the 3.0m wide drainage easement within proposed lot 16,

Reconfiguring lots 20 to 22 to permit an east-west orientation of those lots, and

Adjusting the rear boundaries of lots 15-19. The rear of lots 15-22, if modified as proposed, would incorporate the approved “Community Property” allotment.

The site and its locality

The site is identified at Lot 2 in DP 736961, otherwise known as 2 Fern Creek Road, Warriewood. The site is oriented to Fern Creek Road to the east.
Civil works in accordance with the approved development are underway.
The site is affected by flood, biodiversity considerations, acid sulphate soils, and by a geotechnical hazard. The western portion of the site is steep and vegetated.
The majority of the site is zoned R3 Medium Density Residential zone under Pittwater Local Environmental Plan 2014 (PLEP). The western portion is zoned RU2 Rural Landscape…

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.

Keep reading for free

Create a free CaseChat account to read Baxter v Northern Beaches Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWLEC 1390
Decision Date: 11 July 2016

CaseChat Overview and Summary

Baxter v Northern Beaches Council is a case that came before the Land and Environment Court of New South Wales, where the dispute was between Baxter, the appellant, and Northern Beaches Council, the respondent. The appellant, Baxter, sought to appeal a decision by the respondent council which had disallowed his application for a development permit under the Environmental Planning and Assessment Act 1979. The crux of the dispute was centred on whether the council's decision to refuse the development permit was unreasonable and whether the council's consideration of the Environmental Planning and Assessment Act 1979 was in accordance with the law.

The legal issues before the court were primarily whether the council had acted unreasonably in denying the development permit and whether the council had properly considered the relevant planning and environmental legislation. The court had to determine if the council's decision was based on a proper application of the law, whether the decision-making process was transparent and rational, and if the council's reliance on certain factors in denying the permit was justified under the Act.

The court found that the council's decision to refuse the development permit was unreasonable. The reasoning behind the court's decision was that the council failed to properly consider the merits of the application and instead relied on subjective and speculative concerns that were not substantiated by the evidence. The court emphasised the need for decision-makers to follow a rational and transparent process, and to base their decisions on objective evidence and the law. The court held that the council's failure to adequately consider the merits of the application rendered its decision unreasonable. Consequently, the appeal was upheld, and the original decision of the council was set aside.

Orders

Orders of the court

Appeal upheld - see [70]

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:	Baxter v Northern Beaches Council [2016] NSWLEC 1390
Hearing dates:	27 June 2016
Date of orders:	06 September 2016
Decision date:	11 July 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld - see [70]
Catchwords:	MODIFICATION APPLICATION: Residential subdivision; lot comprises two zones; boundary adjustment; water management; zone objectives; conditions
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Conveyancing Act 1919 Pittwater Local Environmental Plan 2014
Cases Cited:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 King & ors v Bathurst Regional Council (2006) 150 LGERA 362 Newbury DC v Secretary of State for the Environment [1981] AC 578
Category:	Principal judgment
Parties:	Thomas Baxter (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Applicant: Mr N Eastman Respondent: Ms J Reid Solicitors: Applicant: Storey & Gough Respondent: King & Wood Mallesons
File Number(s):	155894 of 2016