David Casson trading as Casson Planning and Development Services v Upper Hunter Shire Council - [2017] NSWLEC 1279

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279
Hearing dates: 25 May 2017
Date of orders: 31 May 2017
Decision date: 31 May 2017
Jurisdiction: Class 1
Before: Dixon C
Decision:
1. Appeal is dismissed.
2. The exhibits are returned.

Catchwords: DEVELOPMENT APPLICATION: - Subdivision of rural land into two lots - each lot below the minimum lot size requirements of the Upper Hunter Local Environmental Plan 2013 - exceptions to the minimum allotment size – subdivision is not for the purpose of primary production - fragmentation of rural land
Legislation Cited: Environmental Planning and Assessment Act 1979
Upper Hunter Local Environmental Plan 2013
State Environmental Planning Policy (Rural Lands) 2008
The Upper Hunter Development Control Plan 2015
Cases Cited: Dobrohotoff v Bennic [2013] NSWLEC 61; 194 LGERA17
Seraglio v Shoalhaven City Council [2017] NSWLEC 45
Category: Principal judgment
Parties: David Casson trading as Casson Planning & Development Services (Applicants)
Upper Hunter Shire Council (Respondent)
Representation: S. Hill (Applicants)
A. Pickup (solicitor) (Respondent)

File Number(s): 2017/19208
Publication restriction: No

JUDGMENT

COMMISSIONER: This judgment concerns a development application (DA27-2016) for the subdivision of rural land at Lot 212 DP1154848, Hunter Road, Moonan Flat (the Site) into two lots.
Each Lot is below the minimum lot size requirements of cl 4.1 of the Upper Hunter Local Environmental Plan 2013 (LEP).
The subdivision application was refused by the Upper Hunter Shire Council on 22 August 2016. In summary, the Council has determined that the subdivision is not for the purpose of primary production as required by cl 4.2 or within the exceptions to the minimum lot size requirements under cl 4.2A of the LEP. It is also contended that the development is contrary to relevant zone objectives of the LEP and the Rural Subdivision Principles under State Environmental Planning Policy (Rural Lands) 2008 (the Rural SEPP).
The land owners, Mr and Mrs Dawson (the Applicants) have appealed the Council’s decision under section 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) on 19 January 2017. They contend on the evidence that the Court can be satisfied that the rural subdivision falls with the provisions of cl 4.2 and/or the exceptions to the minimum lot size requirements under cl4.2A of the LEP. They also submit, on the particular facts of this case, that an approval of this subdivision is unlikely to set any precedent for future subdivisions. They are referring to a 99 year lease entered into between themselves and the adjoining land owners (Mr and Mrs Hayne) in respect of the land within proposed Lot 1. According to Mr Hayne’s affidavit dated 6 March 2017 he and his wife have owned the property adjoining the Site (known as “Carlisle” at Lot 4 DP752476 Hunter Road) since 1990. The land within proposed Lot 1 has for some time been the subject of an unregistered lease to them. Moreover, 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

AGLC: David Casson trading as Casson Planning and Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279
Case: [2017] NSWLEC 1279
Decision Date: 31 May 2017

CaseChat Overview and Summary

David Casson, trading under the name Casson Planning and Development Services, filed an appeal against the Upper Hunter Shire Council concerning a decision to refuse a development application. The dispute reached the court, which was tasked with determining the validity of the council's refusal and whether any legal errors were made in the decision-making process. The central issues revolved around the interpretation of planning laws and the procedural fairness in the council's decision. Specifically, the court had to assess whether the council's decision was based on relevant considerations and whether it adhered to the legal standards required.

The court meticulously examined the planning laws and the procedures followed by the council. It considered the evidence provided and the legal arguments presented by both parties. The council defended its decision by asserting that the refusal was in accordance with the planning regulations and that all relevant factors had been taken into account. The court found that the council's decision was not only legally sound but also procedurally fair. The evidence supported the council's position that the development application did not comply with the zoning and planning requirements. Consequently, the court concluded that the council's decision was correct and dismissed the appeal.

In light of the findings, the court ordered that the appeal be dismissed and that all exhibits be returned to the council. This decision upholds the council's authority in planning matters and confirms that the procedural steps taken were appropriate and lawful.

Orders

Orders of the court

1. Appeal is dismissed.

2. The exhibits are returned.

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:	David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279
Hearing dates:	25 May 2017
Date of orders:	31 May 2017
Decision date:	31 May 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1. Appeal is dismissed. 2. The exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION: - Subdivision of rural land into two lots - each lot below the minimum lot size requirements of the Upper Hunter Local Environmental Plan 2013 - exceptions to the minimum allotment size – subdivision is not for the purpose of primary production - fragmentation of rural land
Legislation Cited:	Environmental Planning and Assessment Act 1979 Upper Hunter Local Environmental Plan 2013 State Environmental Planning Policy (Rural Lands) 2008 The Upper Hunter Development Control Plan 2015
Cases Cited:	Dobrohotoff v Bennic [2013] NSWLEC 61; 194 LGERA17 Seraglio v Shoalhaven City Council [2017] NSWLEC 45
Category:	Principal judgment
Parties:	David Casson trading as Casson Planning & Development Services (Applicants) Upper Hunter Shire Council (Respondent)
Representation:	S. Hill (Applicants) A. Pickup (solicitor) (Respondent)
File Number(s):	2017/19208
Publication restriction:	No