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Chambers v Maclean Shire Council

Chambers v Maclean Shire Council

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Reported Decision:
(2003) 126 LGERA 7
57 NSWLR 152

Court of Appeal

CITATION: Chambers v Maclean Shire Council & 2 Ors [2003] NSWCA 100

HEARING DATE(S): 04/04/03

JUDGMENT DATE:
13 June 2003

JUDGMENT OF: Sheller JA at 1; Giles JA at 2; Ipp JA at 7

DECISION: (1) The amendment sought by Ms Chambers to the notice of appeal be allowed (2) The appeal be allowed (3) The orders made by Sheahan J be set aside (4) A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a prohibited development (5) A declaration be made that the development application lodged by Mr and Mrs Smith and the development consent LDA No 2000/0585 issued to Mr and Mrs Smith by the Council on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect (6) The Council and Mr and Mrs Smith pay Ms Chambers' costs of the appeal (7) The Council and Mr and Mrs Smith to have a certificate under the Suitors Fund Act if otherwise entitled (8) The Council to pay Ms Chambers' costs of the proceedings in the Land and Environment Court.

CATCHWORDS: Appeal from review proceedings - Whether final or interlocutory order made - Construction of SEPP 62 - Meaning of the term "area" in cl 4 of Schedule 1 to SEPP 62 - Jurisdictional nature of classifying a development as prohibited under the Environmental Planning and Assessment Act 1979 - Council's power to consent to a prohibited development - Procedure by which a prohibited development may be the subject of a development application - Effect of SEPP 62: sustainable Aquaculture (Amendment No 1) - Request for Land and Environment Court to exercise its discretion. D

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 4, 76(1), 76A(1) 76B, 77, 78A(1), 89(1), 89(2), 100A(2), 101
Land and Environment Court Act 1979, ss 20(1)(c), 20(2)(b)
Local Government Act 1993
Surveyors Act 1929, s 23(1)

CASES CITED: Becker v Marion City Corporation [1977] AC 271
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389
Continental Liquers Pty Limited v G F Heublein & Bros Inc (1960) 103 CLR 422
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135
Hawkesbury City Council v Sammut (2002) 119 LGERA 171
Hope v Bathurst City Council (1980) 144 CLR 1
Londish v Knox Grammar School (1997) 97 LGERA 1
Maxwell v Murphy (1957) 96 CLR 261
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Warringah Shire Council v Sedevic (1987) 10 NSWLR 335

PARTIES :
Anita Chambers (Claimant)
Maclean Shire Council (First Opponent)
Paul Smith (Second Opponent)
Yumi Smith (Third Opponent)

FILE NUMBER(S): CA 40392/02

COUNSEL: T F Robertson SC (Claimant)
J B Maston (First Opponent)
Paul Smith (In Person)

SOLICITORS: Sylvia Winters (Claimant)
Pickering Priestley (First Opponent)
Paul Smith (In Person)

LOWER COURTJURISDICTION: Land &…

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: [2003] NSWCA 100
Decision Date: 13 June 2003

CaseChat Overview and Summary

The appeal concerned a dispute between Ms Chambers and Maclean Shire Council regarding a development application for a prawn farm and research station. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the order made by Sheahan J in the Land and Environment Court was final or interlocutory, the proper construction of State Environmental Planning Policy No 62 (SEPP 62), specifically the meaning of "area" in clause 4 of Schedule 1, and the jurisdictional nature of classifying development as prohibited under the *Environmental Planning and Assessment Act 1979*. The court also considered the Council's power to consent to prohibited development and the procedure for such applications.

The Court of Appeal reasoned that the order of Sheahan J was interlocutory, and therefore the appeal was properly before them. They construed SEPP 62, finding that the term "area" in clause 4 of Schedule 1 referred to the area of the proposed development itself, not the surrounding locality. This interpretation led to the conclusion that the proposed prawn farm and research station was prohibited development. The court held that a council cannot grant development consent to a prohibited development, and any such consent is void.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of Sheahan J, and made declarations that the development was prohibited as at 11 July 2001 and that the development application and consent granted by the Council were void. The Council and the Smiths were ordered to pay Ms Chambers' costs of the appeal, and the Council was also ordered to pay Ms Chambers' costs of the proceedings in the Land and Environment Court.

Orders

Orders of the court

(1) The amendment sought by Ms Chambers to the notice of appeal be allowed (2) The appeal be allowed (3) The orders made by Sheahan J be set aside (4) A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a prohibited development (5) A declaration be made that the development application lodged by Mr and Mrs Smith and the development consent LDA No 2000/0585 issued to Mr and Mrs Smith by the Council on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect (6) The Council and Mr and Mrs Smith pay Ms Chambers' costs of the appeal (7) The Council and Mr and Mrs Smith to have a certificate under the Suitors Fund Act if otherwise entitled (8) The Council to pay Ms Chambers' costs of the proceedings in the Land and Environment Court.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Chambers v Maclean Shire Council & 2 Ors [2003] NSWCA 100
HEARING DATE(S):	04/04/03
JUDGMENT DATE:	13 June 2003
JUDGMENT OF:	Sheller JA at 1; Giles JA at 2; Ipp JA at 7
DECISION:	(1) The amendment sought by Ms Chambers to the notice of appeal be allowed (2) The appeal be allowed (3) The orders made by Sheahan J be set aside (4) A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a prohibited development (5) A declaration be made that the development application lodged by Mr and Mrs Smith and the development consent LDA No 2000/0585 issued to Mr and Mrs Smith by the Council on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect (6) The Council and Mr and Mrs Smith pay Ms Chambers' costs of the appeal (7) The Council and Mr and Mrs Smith to have a certificate under the Suitors Fund Act if otherwise entitled (8) The Council to pay Ms Chambers' costs of the proceedings in the Land and Environment Court.
CATCHWORDS:	Appeal from review proceedings - Whether final or interlocutory order made - Construction of SEPP 62 - Meaning of the term "area" in cl 4 of Schedule 1 to SEPP 62 - Jurisdictional nature of classifying a development as prohibited under the Environmental Planning and Assessment Act 1979 - Council's power to consent to a prohibited development - Procedure by which a prohibited development may be the subject of a development application - Effect of SEPP 62: sustainable Aquaculture (Amendment No 1) - Request for Land and Environment Court to exercise its discretion. D
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 4, 76(1), 76A(1) 76B, 77, 78A(1), 89(1), 89(2), 100A(2), 101 Land and Environment Court Act 1979, ss 20(1)(c), 20(2)(b) Local Government Act 1993 Surveyors Act 1929, s 23(1)
CASES CITED:	Becker v Marion City Corporation [1977] AC 271 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Continental Liquers Pty Limited v G F Heublein & Bros Inc (1960) 103 CLR 422 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 Hawkesbury City Council v Sammut (2002) 119 LGERA 171 Hope v Bathurst City Council (1980) 144 CLR 1 Londish v Knox Grammar School (1997) 97 LGERA 1 Maxwell v Murphy (1957) 96 CLR 261 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335
PARTIES :	Anita Chambers (Claimant) Maclean Shire Council (First Opponent) Paul Smith (Second Opponent) Yumi Smith (Third Opponent)
FILE NUMBER(S):	CA 40392/02
COUNSEL:	T F Robertson SC (Claimant) J B Maston (First Opponent) Paul Smith (In Person)
SOLICITORS:	Sylvia Winters (Claimant) Pickering Priestley (First Opponent) Paul Smith (In Person)