Bowerman v Hornsby Shire Council

[2007] NSWLEC 265

Land and Environment Court

of New South Wales

CITATION:	Bowerman v Hornsby Shire Council [2007] NSWLEC 265
PARTIES:	APPLICANT Bradley Scott Bowerman RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10654 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consent orders
CASES CITED:	Weal v Bathurst City Council (2000) 111 LGERA 181 ; Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734
DATES OF HEARING:	29 January, 6 and 12 March 2007
EX TEMPORE JUDGMENT DATE:	12 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms McClelland-Marshall, agent RESPONDENT Mr P Jackson, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

12 March 2007

10654 of 2006 Bradley Scott Bowerman v Hornsby Shire Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act1979 against the refusal by Hornsby Shire Council (the Council), on 9 June 2006, of Development Application 1392 of 2005. The development application proposes the erection of a residence at 22 Singleton Road, Wisemans Ferry.

2 As a consequence of a series of negotiations between those acting on behalf of the applicant and the Council, the matter has now arrived at a position of proposed consent Orders.

3 There have been filed in the proceedings a variety of reports, particularly a report on the critical issue in this location of the adequacy of bushfire protection. There have also been a series of revisions to the plans so that the Council is now satisfied that the bulk and scale of the dwelling and the way it will be read in its context is appropriate. Having read the reports and examined the plans, I accept the Council’s conclusion that the proposed development is now acceptable.

4 There are and have not been any objectors to the application and there is therefore no need to consider objections, nor to have any concern about compliance with para 9 of the Consolidated Practice Direction.

5 As a consequence, by consent, the appeal will be upheld and deferred development consent granted to the application.

6 I am satisfied, having considered the terms of the deferred development consent conditions, that there is nothing in that deferral relating to issues which would offend against either the principles enunciated by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181 and that there is nothing that occasions uncertainty in the sense dealt with by the Court of Appeal in Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734.

7 As a consequence, the Orders of the Court will be:

1. The appeal is upheld;
2. Deferred development consent is granted to Development Application 1392/2005 for the erection of a dwelling house at 22 Singleton Road, Wisemans Ferry subject to the conditions which have been annexed to the consent Orders (subject to the single initialled amendment contained in those consent Orders); and
3. The exhibits are retained.

Commissioner of the Court