Chambers v Maclean Shire Council - [2002] NSWLEC 1

Reported Decision: 117 LGERA 422

Land and Environment Court

of New South Wales

CITATION: Chambers v Maclean Shire Council & Ors [2002] NSWLEC 1

PARTIES:
APPLICANT
Anita Chambers
FIRST RESPONDENT
Maclean Shire Council
SECOND RESPONDENT
Paul Smith
THIRD RESPONDENT
Yumi Smith

FILE NUMBER(S): 40140 of 2001

CORAM: Sheahan J

KEY ISSUES: Judicial Review :- Preliminary question determined - permissibility - construction and application of SEPP 62 - principles of construction - meaning of word "area" in its context - conclusion reasonably open to consent authority

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s25(3) & s 76B
Fisheries Management Act 1994 s 144
Interpretation Act 1987 s 34(1)(a) and s 35(2)(c)
Local Government Act 1993
State Environmental Planning Policy 62

CASES CITED: Londish v Knox Grammar School (1997) 97 LGERA 1;
Saraswati v R [1991] ALR 193;
Vanmeld Pty Ltd v Fairfield City Council [1997] NSWLEC 200

DATES OF HEARING: 28/11/2001

DATE OF JUDGMENT:
01/14/2002

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Winters (Barrister)
FIRST RESPONDENT
Mr J B Maston (Barrister)
Pickering Priestley (Solicitors)
SECOND AND THIRD RESPONDENTS
No appearance

JUDGMENT:

ANITA CHAMBERS

Applicant

MACLEAN SHIRE COUNCIL

First Respondent

PAUL SMITH

Second Respondent

YUMI SMITH

Third Respondent

JUDGMENT

Introduction

1. In these class 4 proceedings Ms Chambers challenges a grant of consent by the first respondent (“Council”) to the second and third respondents (“Smith”) for the development of a prawn farm and research station. (Related class 1 proceedings have now been disposed of – see matter 10604 of 2001).

2. The proposed farm/station will occupy virtually the whole of a 9.6ha block of waterfront land, in lot 12 deposited plan 1009500 School Road, Palmers Island (“the subject land”), on the Clarence River on the NSW North Coast (Exhibit M1 fol 8, and T31 L42-44).

3. There are apparently two other prawn farms nearby (Exhibit M1 fol 75), and Council granted the challenged consent on 11 July 2001, subject to conditions.

4. State Environmental Planning Policy No.62 – Sustainable Aquaculture (“SEPP 62”) is agreed between the parties to apply to the relevant development application (“DA”) and consent (“DC”). Most intensive aquaculture development is “designated development”, except that which attracts the application of SEPP 62.

5. In this judgment the court is dealing only with the agreed separate trial, as a preliminary question, of paragraphs 1-5 in the applicant’s Amended Points of Claim.

6. As leave was granted at the hearing for the Council to amend its Points of Defence to raise its defence of discretion, the court proposes to make no orders in the proceedings at this stage, but merely to deal with the issue, as it is put in par 4 of the Amended Points of Claim, in which the applicant asserts that Smith’s:

development is not permissible because the proposed site does not meet the minimum performance criterion that elevation be greater than 1 m AHD as prescribed by Clause…

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: [2002] NSWLEC 1
Decision Date: 01/14/2002

CaseChat Overview and Summary

This case involved an application by Anita Chambers to challenge a grant of consent by Maclean Shire Council to Paul and Yumi Smith for the development of a prawn farm and research station. The proposed development would occupy virtually the entire 9.6ha block of waterfront land on Palmers Island on the Clarence River on the NSW North Coast. The applicant argued that the proposed site did not meet the minimum performance criterion that elevation be greater than 1m AHD as prescribed by SEPP 62. The court had to decide whether the Smith development conformed with the minimum performance criteria set out in SEPP 62. The court found that it was reasonably open to the Council to determine that the Smith proposal was permissible, as the Council was entitled to rely on the Acid Sulphate Soils Risk Maps to determine the elevation of the site. The court concluded that the subject development was permissible and that the Council was entitled to so determine.

Orders