Carstens v Pittwater Council

Case [1999] NSWLEC 249



Land and Environment Court


of New South Wales

          CITATION:
Carstens v Pittwater Council [1999] NSWLEC 249
          PARTIES
APPLICANT:
E C Carstens
RESPONDENT:
Pittwater Council
          NUMBER:
10093 of 1999
          CORAM:
Lloyd J
          KEY ISSUES:
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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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