Bazzi v Sutherland Shire Council - [2017] NSWLEC 1662

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Bazzi v Sutherland Shire Council [2017] NSWLEC 1662
Hearing dates: 11 – 13 September 2017
Date of orders: 22 November 2017
Decision date: 22 November 2017
Jurisdiction: Class 1
Before: Adam AC
Decision:
The Orders of the Court are:

(1) Appeal dismissed.

(2) The Development Application No. 16/0359 for a three lot subdivision of 24 – 26 Wonga Road, Yowie Bay, is refused.
(3) Exhibits are returned except for Exhibits 2, A, B, C, D, E, F, J and K.
Catchwords: DEVELOPMENT APPLICATION - subdivision - development control plan - Greenweb - environmentally sensitive land - foreshore - bushfire - rock outcrops - watercourse - future development
Legislation Cited: Biodiversity Conservation Act 2016
Coastal Management Act 2016
Conveyancing Act 1919
Draft Coastal Management State Environmental Planning Policy
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1960-1965 (WA)
Planning for Bush Fire Protection 2006
Rights in Water and Irrigation Act 1914-1964 (WA)
Rivers and Foreshores Improvement Act 1948
Rural Fires Act 1997
Rural Fires Regulation 2008
Sutherland Shire Local Environmental Plan 2006
Sutherland Shire Local Environmental Plan 2015
Threatened Species Conservation Act 1995
Cases Cited: Andrew Aitchison v Sutherland Shire Council [2017] NSWLEC 1304
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Burke v Hawkesbury City Council [2001] NSWLEC 222
Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140
Davies v Penrith City Council [2013] NSWLEC 1141
Hamilton v Sutherland Shire Council [2012] NSWLEC 1015
Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322
Hurley v Sutherland Shire Council [2016] NSWLEC1603
Hymak Pty Ltd & anor v Wyong Shire Council [2015] NSWLEC1546
Innovate Architects v Sutherland Shire Council [2017] NSWLEC 1067
Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99
Knezovic v Shire of Swan-Guildford (1968) 18 CLR 468
Maule v Liporoni and anor [2002] NSWLEC 25
Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd. [2010] NSWLEC 48
Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd (No 2) [2010] NSWLEC 104
Parrott v Kiama [2004] NSWLEC 77
Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 1329
Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133
Texts Cited: Sutherland Shire Development Control Plan 2006
Sutherland Shire Development Control Plan 2015
A.E Kahn 1969 ‘The tyranny of small decisions: market failures, imperfections and the limits of economics’ 19 Kyklos 33
W E Odum 1982, ‘Environmental degradation and the tyranny of small decisions’ 32 BioScience 728
M Taylor and R Stokes 2005, ‘Up the creek; what’s wrong with the definition of a river in New South Wales?’ 22 EPLJ 193
Category: Principal judgment
Parties:

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: [2017] NSWLEC 1662
Decision Date: 22 November 2017

CaseChat Overview and Summary

Bazzi v Sutherland Shire Council involves the applicant, Mr Bazzi, and the Sutherland Shire Council. Mr Bazzi applied for a development approval to subdivide a property into three lots. The Council denied the application, leading to an appeal to the Land and Environment Court of New South Wales. The court was tasked with determining whether the Council's decision was legally sound and whether it was justified in denying the development application.

The central legal issue before the court was whether the Sutherland Shire Council's decision to refuse the development application was valid and whether it was reasonable to deny the application. The court considered whether the Council properly exercised its discretion in denying the application, and if the reasons provided by the Council were sufficient and lawful. Additionally, the court examined whether the applicant's proposal complied with relevant planning policies and development controls.

In its judgment, the court found that the Council's decision to refuse the development application was valid and properly exercised. The court was satisfied that the reasons provided by the Council were reasonable and that the decision was supported by the evidence. The court also found that the proposal did not comply with certain planning policies and development controls, which justified the refusal. Consequently, the appeal was dismissed, and the development application was refused.

Orders

Orders of the court

The Orders of the Court are:

(1) Appeal dismissed.

(2) The Development Application No. 16/0359 for a three lot subdivision of 24 – 26 Wonga Road, Yowie Bay, is refused.

(3) Exhibits are returned except for Exhibits 2, A, B, C, D, E, F, J and K.

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:	Bazzi v Sutherland Shire Council [2017] NSWLEC 1662
Hearing dates:	11 – 13 September 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Orders of the Court are: (1) Appeal dismissed. (2) The Development Application No. 16/0359 for a three lot subdivision of 24 – 26 Wonga Road, Yowie Bay, is refused. (3) Exhibits are returned except for Exhibits 2, A, B, C, D, E, F, J and K.
Catchwords:	DEVELOPMENT APPLICATION - subdivision - development control plan - Greenweb - environmentally sensitive land - foreshore - bushfire - rock outcrops - watercourse - future development
Legislation Cited:	Biodiversity Conservation Act 2016 Coastal Management Act 2016 Conveyancing Act 1919 Draft Coastal Management State Environmental Planning Policy Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1960-1965 (WA) Planning for Bush Fire Protection 2006 Rights in Water and Irrigation Act 1914-1964 (WA) Rivers and Foreshores Improvement Act 1948 Rural Fires Act 1997 Rural Fires Regulation 2008 Sutherland Shire Local Environmental Plan 2006 Sutherland Shire Local Environmental Plan 2015 Threatened Species Conservation Act 1995
Cases Cited:	Andrew Aitchison v Sutherland Shire Council [2017] NSWLEC 1304 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Burke v Hawkesbury City Council [2001] NSWLEC 222 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 Davies v Penrith City Council [2013] NSWLEC 1141 Hamilton v Sutherland Shire Council [2012] NSWLEC 1015 Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 Hurley v Sutherland Shire Council [2016] NSWLEC1603 Hymak Pty Ltd & anor v Wyong Shire Council [2015] NSWLEC1546 Innovate Architects v Sutherland Shire Council [2017] NSWLEC 1067 Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 Knezovic v Shire of Swan-Guildford (1968) 18 CLR 468 Maule v Liporoni and anor [2002] NSWLEC 25 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd. [2010] NSWLEC 48 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd (No 2) [2010] NSWLEC 104 Parrott v Kiama [2004] NSWLEC 77 Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 1329 Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133
Texts Cited:	Sutherland Shire Development Control Plan 2006 Sutherland Shire Development Control Plan 2015 A.E Kahn 1969 ‘The tyranny of small decisions: market failures, imperfections and the limits of economics’ 19 Kyklos 33 W E Odum 1982, ‘Environmental degradation and the tyranny of small decisions’ 32 BioScience 728 M Taylor and R Stokes 2005, ‘Up the creek; what’s wrong with the definition of a river in New South Wales?’ 22 EPLJ 193
Category:	Principal judgment
Parties: