Section 56A Appeal :- misattribution of weight to relevant considerations not an error of law. Construction and Interpretation - s 79C(1) - relevant considerations - objects of the Act may be considered. Practice & Procedure - views - procedural fairness applies - extent of duty to give reasons. Development - whether likely to significantly affect threatened species, populations or ecological communities - only the relevant tests in s 5A need be considered.
LEGISLATION CITED:
Environmental Planning & Assessment Act 1979, s 5, s 5A, s 78A(8)(b), s 79C(1) Interpretation Act 1987, s 33, s 34(1)(2)
DATES OF HEARING:
09/02/1999; 09/03/1999
DATE OF JUDGMENT DELIVERY:
11/10/1999
LEGAL REPRESENTATIVES:
APPLICANT: P C Tomasetti (Barrister) SOLICITORS: John D Hancock
RESPONDENT: B J Preston (Barrister) SOLICITORS: Mallesons Stephen Jaques
JUDGMENT:
Contents
Paragraph
Introduction 1
Ground (1) -
The Commissioner took into account irrelevant considerations,
namely certain draft development control plans and a policy document 3
Ground (2) -
The Commissioner wrongly determined that he had no jurisdiction to
consider the application because of an erroneous finding by him of a
jurisdictional fact that the Pittwater spotted gum ecological community
is present on the land. 28
Ground (7) -
The Commissioner departed from the rules of procedural fairness
during and following a view of the site. 37
Other grounds 52
Ground (3) -
The Commissioner denied the applicant natural justice in referring to
and relying upon a circular published by the New South Wales
National Parks & Wildlife Service. 53
Ground (4)
The Commissioner erred in holding that once having established
that the Pittwater spotted gum ecological community is present on
the site only one of the eight tests set forth in section 5A of the
EP&A Act need be satisfied before it is necessary for a species
impact statement to be carried out. 56
Ground (5)
The Commissioner erred in holding that after applying the 8 part
test under the Act, there would be a likelihood of significant
effect as a result of the proposed development on the threatened
species, populations or ecological communities, a species impact
statement was required and that in the absence of such a statement
the development application must fail 62
Ground (6)
The Commissioner erred in holding that there would be a
likelihood of significant effect on the ecological community if the
development in its present form were carried out because a
significant number of trees and their canopy, within known habitat
of the Pittwater spotted gum ecological community, would need to be
removed. 63
Ground (8)
The Commissioner erred in holding that under the EP&A Act
the principles of ecologically sustainable development must be a
factor in the assessment of the impact on the environment of a
combined development application and construction certificate. 71
Ground (9)
The Commissioner failed to have regard to the evidence…
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
AGLC
Carstens v Pittwater Council [1999] NSWLEC 249
Case
[1999] NSWLEC 249
Decision Date
CaseChat Overview and Summary
The applicant, E C Carstens, appealed against the decision of a Commissioner who had dismissed an appeal against the Pittwater Council's refusal to consent to a development application. The applicant relied on eleven grounds of appeal, three of which were identified as principal. The Commissioner had found that the applicant's proposed development would have a significant effect on the Pittwater spotted gum ecological community, which required a species impact statement, and that without such a statement the development application must fail. Lloyd J considered each of the grounds of appeal. Lloyd J rejected the submission that the Commissioner had taken into account irrelevant considerations, holding that the objects of the Environmental Planning and Assessment Act 1979 permitted the Commissioner to take into account matters not listed in s 79C(1) provided they were relevant to the development application. Lloyd J also rejected the submission that the Commissioner had wrongly determined that he had no jurisdiction to consider the application, holding that the Commissioner's finding that the Pittwater spotted gum ecological community was present on the land was reasonably open to him and was not a jurisdictional fact. Lloyd J further rejected the submission that the Commissioner had departed from the rules of procedural fairness during and following a view of the site, holding that the Commissioner had not breached the rules of procedural fairness by giving weight to the fact that he was apparently told by someone during the view that the presence of clay-like material was indicative of shale-derived soils. Lloyd J rejected all eleven grounds of appeal and dismissed the appeal.