Cardiff Holdings Pty Ltd v Singleton Council - [2018] NSWLEC 1335

Land and Environment Court

New South Wales

Medium Neutral Citation: Cardiff Holdings Pty Ltd v Singleton Council [2018] NSWLEC 1335
Hearing dates: 27 June 2017
Date of orders: 13 July 2018
Decision date: 13 July 2018
Jurisdiction: Class 1
Before: Bish C
Decision:
Orders at [53]

Catchwords: CONSENT ORDERS: service station with ancillary shops; flood hazard; traffic safety on classified road; sewer pump station.
Legislation Cited: Environmental Planning and Assessment Act 1979 No. 203
Land and Environment Court Act 1979
Local Government Act 1993
Roads Act 1993
Singleton Local Environmental Plan 2013
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 33 - Hazardous and Offensive Development
State Environmental Planning Policy No 55 - Remediation of Land
State Environmental Planning Policy No 64 - Advertising and Signage
Water Management Act 2000
Cases Cited: Macdonald v Mosman Municipal Council NSWLEC 215
Nash Bros Builders Pty Ltd v Riverina Water County Council NSWCA 225 [2016]
Texts Cited: Floodplain Development Manual (2005)
Singleton Floodplain Risk Management Study (2011)
Singleton Floodplain Risk Management Plan (2012)
Category: Principal judgment
Parties: Cardiff Holdings Pty Ltd (Applicant)
Singleton Council (Respondent)
Representation:
Counsel:
C Ireland (Applicant)
Solicitors:
Coutts Mallik Rees Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s): 2017/279886
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against refusal of Development Application (DA) DA 199/2016 by Singleton Council (the Council) that relates to a highway service centre, including take away food and drink premises, and two ancillary shops (known as tenancies 1 and 2) within Lot 1 DP 85119, Lot 10 DP 1032989 and Lot 61 DP 1040979, also known as 1, 3 and 5 Bridgman Road, Dunolly (hereafter the site).

Background

Following a number of pre-lodgement meetings between the Applicant and Council, the DA was lodged on 11 October 2016. The DA was notified to adjoining property owners, with a total of 20 submissions subsequently received.
Following the provision of additional information from the Applicant relating to flooding and traffic, the DA was re-notified to residents, with nine submissions received. Issues raised by objectors included: pedestrian safety and impacts to highway flow; flooding; visual and noise impacts; and permissibility.
An application for concurrence to Roads and Maritime Services (RMS) was responded to positively on 30 March 2017, although set out requirements for:

amendments to the driveway access design to increase separation between truck entry and access off New England Highway and from Newton Street; and

signage consistent with State Environmental Planning Policy No 64, specifically cl 18.

On 10 April 2017 Council refused the DA, pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 on the basis of: the site’s high flood hazard; inconsistency with zone objectives; traffic impacts; and inconsistent with the Community Strategic Plan.
The DA appeal was commenced as a conciliation conference on 7 February 2018, pursuant to s34 the Land and Environment Court Act 1979 (LEC Act), which was terminated, pursuant to s 34(4) as the contentions could not be resolved without further information related to…

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: [2018] NSWLEC 1335
Decision Date: 13 July 2018

CaseChat Overview and Summary

Cardiff Holdings Pty Ltd brought proceedings against Singleton Council concerning a dispute regarding the validity of a planning approval granted by the Council. The case was heard and determined by the Land and Environment Court of New South Wales. The core issue in the case was whether the planning approval granted by the Council was validly issued. Cardiff Holdings argued that the approval was invalid due to procedural flaws in the approval process, while Singleton Council maintained that the approval was validly obtained following the proper procedures under the relevant planning legislation.

The court had to decide whether the procedural steps taken by the Council in granting the approval complied with the statutory requirements. This involved examining the records of the Council’s decision-making process, the notice of the application, and the opportunity provided for public comment. The court also considered whether the approval was within the Council’s jurisdiction and whether there were any jurisdictional errors in the approval process. The primary focus was on whether the statutory requirements for the approval process were met, including whether there was adequate notice and opportunity for public comment.

In its decision, the court found that the approval was indeed validly issued. The Council had followed the necessary procedures, providing adequate notice and allowing for public comment as required by the legislation. The court rejected Cardiff Holdings’ argument that the approval was invalid due to procedural flaws. The Council’s decision-making process was found to be in compliance with statutory requirements, and therefore, the approval was held to be valid. As a result, the court dismissed the proceedings brought by Cardiff Holdings. The final orders of the court were made at [53].

Orders

Orders of the court

Orders at [53]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cardiff Holdings Pty Ltd v Singleton Council [2018] NSWLEC 1335
Hearing dates:	27 June 2017
Date of orders:	13 July 2018
Decision date:	13 July 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	Orders at [53]
Catchwords:	CONSENT ORDERS: service station with ancillary shops; flood hazard; traffic safety on classified road; sewer pump station.
Legislation Cited:	Environmental Planning and Assessment Act 1979 No. 203 Land and Environment Court Act 1979 Local Government Act 1993 Roads Act 1993 Singleton Local Environmental Plan 2013 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 33 - Hazardous and Offensive Development State Environmental Planning Policy No 55 - Remediation of Land State Environmental Planning Policy No 64 - Advertising and Signage Water Management Act 2000
Cases Cited:	Macdonald v Mosman Municipal Council NSWLEC 215 Nash Bros Builders Pty Ltd v Riverina Water County Council NSWCA 225 [2016]
Texts Cited:	Floodplain Development Manual (2005) Singleton Floodplain Risk Management Study (2011) Singleton Floodplain Risk Management Plan (2012)
Category:	Principal judgment
Parties:	Cardiff Holdings Pty Ltd (Applicant) Singleton Council (Respondent)
Representation:	Counsel: C Ireland (Applicant) Solicitors: Coutts Mallik Rees Lawyers (Applicant) Local Government Legal (Respondent)
File Number(s):	2017/279886
Publication restriction:	No