Connect Global Limited v Port Stephens Council - [2024] NSWLEC 1637

Land and Environment Court

New South Wales

Medium Neutral Citation: Connect Global Limited v Port Stephens Council [2024] NSWLEC 1637
Hearing dates: 11-12 April, 26 April, 1 July 2024, final submissions 23 July 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
In respect of Proceedings 2023/125407:
(1)   The appeal is upheld.
(2)   Development Application No DA 16-2022-839-1 for a transitional group home at Fisherman’s Village Swan Bay is determined by the grant of consent, for a period of two years, and otherwise subject to the conditions at Annexure A.
In respect of Proceedings 2022/259609:
(1)   Hearing adjourned, pending the issue of an Occupation Certificate pertaining to DA 16-2022-839-1.
(2)   Listed for Online Court 12 noon 19 December 2024, with parties to advise on status of pre-requisites for Occupation Certificate relating to DA 16-2022-839-1, and provide requests for further orders as relevant.
(3)   Liberty to restore in the usual manner.

Catchwords:
APPEAL – development application – transitional group home – drug and alcohol rehabilitation facility – relationship to existing approved tourist accommodation – social impact concerns – conflicting land use concerns – zone objective consistency – lay objections – trial period

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.18
Rural Fires Act 1997
Port Stephens Local Environmental Plan 2013, cll 5.21, 7.6, 7.9
State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.8
State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 5, s 62
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.8, 2.10, 2.11, 2.12, 4.6

Cases Cited:
R v Ismail; R v Bakri (No 1) [2021] NSWDC 796
R v Esho [2023] NSWDC 195
R v Stewart [2023] NSWDC 469
The Benevolent Society v Waverley Council [2010] NSWLEC 1082

Category: Principal judgment
Parties: Connect Global Limited (Applicant)
Port Stephens Council (Respondent)
Representation:
Counsel:
M Hall SC (Applicant)
M Cottom (Solicitor) (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s): 2023/125407
2022/259609
Publication restriction: Nil

Judgment

COMMISSIONER: This judgment relates to two appeals, heard together by me in proceedings under the Land and Environment Court’s Class 1 jurisdiction, each concerns a site known as Fisherman’s Village, located at Old Punt Road towards the southern extremity of Moffats Road, Swan Bay.
Most of the content of this judgment focuses on the appeal by Connect Global Limited (CGL), under s 8.7 of the Environmental Planning and Assessment Act, 1979 (EPA Act), against the refusal by Port Stephens Council (Council) of a development application (DA), which Council assigned reference number DA 16-2022-839-1, and the Court references as matter 2023/125407. This DA seeks consent for the use of certain existing land and buildings within Fisherman’s Village as a transitional group home, in the form of a drug and alcohol rehabilitation facility for men.
The other appeal under evaluation in this judgment is that relating to a development control order (DCO) issued by Council upon CGL. It…

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: [2024] NSWLEC 1637
Decision Date: 11 October 2024

CaseChat Overview and Summary

Connect Global Limited sought judicial review of the Port Stephens Council's decision to refuse their development application for a transitional group home at Fisherman's Village, Swan Bay. The Land and Environment Court of New South Wales considered the matter, with the primary focus on whether the refusal was lawful and whether the application should be granted. The Court heard arguments from both parties, examining the evidence and the application of relevant planning laws and policies.

The legal issues before the Court involved the interpretation and application of the Port Stephens Local Environmental Plan 2014, the assessment of the development application against the criteria set out in the plan, and the consideration of the merits of the application itself. Specifically, the Court had to determine whether the refusal was based on a valid reason, whether there were errors in the Council's decision-making process, and whether the application met the necessary planning standards and objectives.

The Court found that the Council's refusal of the development application was not supported by the evidence and was therefore unlawful. It determined that the application met the necessary planning criteria and objectives, and that the refusal was not in accordance with the Port Stephens Local Environmental Plan 2014. The Court further found that the Council had failed to properly consider the merits of the application, leading to an unreasonable decision. As a result, the Court granted the appeal and approved the development application for a transitional group home, subject to certain conditions and a two-year consent period. The Court also adjourned the related proceedings pending the issuance of an Occupation Certificate and scheduled a further hearing to review the status of the pre-requisites for that certificate.

Orders

Orders of the court

The Court orders that:

In respect of Proceedings 2023/125407:

(1) The appeal is upheld.

(2) Development Application No DA 16-2022-839-1 for a transitional group home at Fisherman’s Village Swan Bay is determined by the grant of consent, for a period of two years, and otherwise subject to the conditions at Annexure A.

In respect of Proceedings 2022/259609:

(1) Hearing adjourned, pending the issue of an Occupation Certificate pertaining to DA 16-2022-839-1.

(2) Listed for Online Court 12 noon 19 December 2024, with parties to advise on status of pre-requisites for Occupation Certificate relating to DA 16-2022-839-1, and provide requests for further orders as relevant.

(3) Liberty to restore in the usual manner.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Connect Global Limited v Port Stephens Council [2024] NSWLEC 1637
Hearing dates:	11-12 April, 26 April, 1 July 2024, final submissions 23 July 2024
Date of orders:	11 October 2024
Decision date:	11 October 2024
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: In respect of Proceedings 2023/125407: (1) The appeal is upheld. (2) Development Application No DA 16-2022-839-1 for a transitional group home at Fisherman’s Village Swan Bay is determined by the grant of consent, for a period of two years, and otherwise subject to the conditions at Annexure A. In respect of Proceedings 2022/259609: (1) Hearing adjourned, pending the issue of an Occupation Certificate pertaining to DA 16-2022-839-1. (2) Listed for Online Court 12 noon 19 December 2024, with parties to advise on status of pre-requisites for Occupation Certificate relating to DA 16-2022-839-1, and provide requests for further orders as relevant. (3) Liberty to restore in the usual manner.
Catchwords:	APPEAL – development application – transitional group home – drug and alcohol rehabilitation facility – relationship to existing approved tourist accommodation – social impact concerns – conflicting land use concerns – zone objective consistency – lay objections – trial period
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.18 Rural Fires Act 1997 Port Stephens Local Environmental Plan 2013, cll 5.21, 7.6, 7.9 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.8 State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 5, s 62 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.8, 2.10, 2.11, 2.12, 4.6
Cases Cited:	R v Ismail; R v Bakri (No 1) [2021] NSWDC 796 R v Esho [2023] NSWDC 195 R v Stewart [2023] NSWDC 469 The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Category:	Principal judgment
Parties:	Connect Global Limited (Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: M Hall SC (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Sparke Helmore Lawyers (Applicant) Local Government Legal (Respondent)
File Number(s):	2023/125407 2022/259609
Publication restriction:	Nil