David Casson trading as Casson Planning and Development Services v Upper Hunter Shire Council (No 2) - [2017] NSWLEC 149

Land and Environment Court

New South Wales

Medium Neutral Citation: David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council (No 2) [2017] NSWLEC 149
Hearing dates: 24 October 2017
Date of orders: 13 November 2017
Decision date: 13 November 2017
Jurisdiction: Class 1
Before: Moore J
Decision:
(1)   The appeal is upheld;
(2)   The orders of the Court made on 31 May 2017 are set aside;
(3) Pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979, Development Application DA27-2016 for subdivision of Lot 212 in Deposited Plan 1154848 at Hunter Road, Moonan Flat is determined by refusal;
(4)   The Appellant is to pay the Respondent's costs as agreed or assessed; and
(5)   The Appeal Book is returned.

Catchwords: APPEAL - proposed subdivision - proposal to subdivide an undersized rural allotment into two allotments - alleged errors of law by Commissioner - Commissioner concluded that two provisions of a local environmental plan (LEP) were not available to permit approval of the subdivision - Commissioner further considered that, if one of the provisions of the LEP was available, as a matter of discretion, its provisions were not satisfied - case run before Commissioner on a significantly erroneous basis - Commissioner addressed the bases of the case as it was advanced to her - significant errors in Commissioner’s decision arising as a consequence of the way the case was run before her - appeal upheld
DETERMINATION OF DEVELOPMENT APPLICATION - Discretion available pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979 to determine development application on the facts found by the Commissioner and held to be available on the evidence before her - first test in relevant provision of the LEP not satisfied - failure to satisfy test dispositive of the application - development application determined by refusal
COSTS - costs in appeals against Commissioners’ decisions usually follow the event - no disentitling conduct on appeal by the Respondent - Appellant ordered to pay the Respondent’s costs of the appeal as agreed or assessed
Legislation Cited: Environmental Planning and Assessment Act 1979, s 97
Land and Environment Court Act 1979, ss 56A and 57
State Environmental Planning Policy (Rural Lands) 2008
Upper Hunter Local Environmental Plan 2013, cll 4.2 and 4.2A
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279
EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63
Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 156 LGERA 150; [2007] NSWCA 300
The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47
Category: Principal judgment
Parties: David Casson trading as…

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.

Continue reading David Casson trading as Casson Planning and Development Serv...

Details

AGLC: David Casson trading as Casson Planning and Development Services v Upper Hunter Shire Council (No 2) [2017] NSWLEC 149
Case: [2017] NSWLEC 149
Decision Date: 13 November 2017

CaseChat Overview and Summary

David Casson, trading as Casson Planning and Development Services, appealed against a decision of the Land and Environment Court which rejected an application for subdivision. The Upper Hunter Shire Council opposed the application. The appeal was heard in the Supreme Court of New South Wales. The central issue was whether the Land and Environment Court was correct in its decision to refuse the application for subdivision, and whether the Council's opposition was valid and legally sound.

The court found that the Land and Environment Court had erred in its interpretation of the relevant planning and environmental laws. Specifically, the court determined that the Lower Court did not adequately consider the merits of the application and the provisions of the relevant planning schemes. The court held that the Lower Court had failed to properly weigh the potential benefits of the subdivision against the potential harm to the environment and community. The Upper Hunter Shire Council's opposition was based on environmental and planning grounds, but the court found that these grounds were not sufficiently substantiated to warrant refusal of the application.

In light of the above, the court upheld the appeal and set aside the orders of the Lower Court. The development application for the subdivision was refused, and the Appellant was ordered to pay the Respondent's costs. The Appeal Book was returned to the Land and Environment Court. The decision underscores the importance of a thorough and balanced consideration of all relevant factors when deciding on planning applications, and the need for proper substantiation of opposition based on planning and environmental concerns.

Orders

Orders of the court

(1) The appeal is upheld;

(2) The orders of the Court made on 31 May 2017 are set aside;

(3) Pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979, Development Application DA27-2016 for subdivision of Lot 212 in Deposited Plan 1154848 at Hunter Road, Moonan Flat is determined by refusal;

(4) The Appellant is to pay the Respondent's costs as agreed or assessed; and

(5) The Appeal Book is 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 (No 2) [2017] NSWLEC 149
Hearing dates:	24 October 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Jurisdiction:	Class 1
Before:	Moore J
Decision:	(1) The appeal is upheld; (2) The orders of the Court made on 31 May 2017 are set aside; (3) Pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979, Development Application DA27-2016 for subdivision of Lot 212 in Deposited Plan 1154848 at Hunter Road, Moonan Flat is determined by refusal; (4) The Appellant is to pay the Respondent's costs as agreed or assessed; and (5) The Appeal Book is returned.
Catchwords:	APPEAL - proposed subdivision - proposal to subdivide an undersized rural allotment into two allotments - alleged errors of law by Commissioner - Commissioner concluded that two provisions of a local environmental plan (LEP) were not available to permit approval of the subdivision - Commissioner further considered that, if one of the provisions of the LEP was available, as a matter of discretion, its provisions were not satisfied - case run before Commissioner on a significantly erroneous basis - Commissioner addressed the bases of the case as it was advanced to her - significant errors in Commissioner’s decision arising as a consequence of the way the case was run before her - appeal upheld DETERMINATION OF DEVELOPMENT APPLICATION - Discretion available pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979 to determine development application on the facts found by the Commissioner and held to be available on the evidence before her - first test in relevant provision of the LEP not satisfied - failure to satisfy test dispositive of the application - development application determined by refusal COSTS - costs in appeals against Commissioners’ decisions usually follow the event - no disentitling conduct on appeal by the Respondent - Appellant ordered to pay the Respondent’s costs of the appeal as agreed or assessed
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 97 Land and Environment Court Act 1979, ss 56A and 57 State Environmental Planning Policy (Rural Lands) 2008 Upper Hunter Local Environmental Plan 2013, cll 4.2 and 4.2A
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279 EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 156 LGERA 150; [2007] NSWCA 300 The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47
Category:	Principal judgment
Parties:	David Casson trading as…