David DeBattista v Minister for Planning - [2018] NSWLEC 8

Land and Environment Court

New South Wales

Medium Neutral Citation: David DeBattista v Minister for Planning [2018] NSWLEC 8
Hearing dates: 09 February 2018
Date of orders: 13 February 2018
Decision date: 13 February 2018
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [41]

Catchwords: PRACTICE AND PROCEDURE – notice of motion – leave sought to adduce expert evidence – interrogatories – enforcement proceedings – judicial review – whether evidence relevant to decision under review – relevance matter for trial judge – motion allowed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 117
Shoalhaven Local Environmental Plan 2014
Uniform Civil Procedure Rules 2005 (NSW) r 22.1, r 31.19
Cases Cited: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Category: Procedural and other rulings
Parties: David DeBattista (Applicant)
Minister for Planning (First Respondent)
Shoalhaven City Council (Second Respondent)
Representation:
Counsel:
P Tomasetti SC (Applicant)
L Sims, solicitor (First Respondent)
P Clay SC (Second Respondent)
Solicitors:
Planning Law Solutions (Applicant)
Department of Planning and Environment (First Respondent)
Bradley Allen Love Lawyers (Second Respondent)

File Number(s): 2017/00387827
Publication restriction: No

Judgment

In an Amended Summons filed 25 January 2018, David DeBattista (‘applicant’) seeks declaratory and consequential relief in relation to the conduct of Shoalhaven City Council (‘Council’) in the preparation of planning proposal PP023 dated 12 October 2017 (‘planning proposal’) regarding the amendment of aspects of Shoalhaven Local Environmental Plan 2014 (‘SLEP’).
The present proceedings came before me on 9 February 2018 in my capacity as list judge. Before the Court is a Notice of Motion in the substantive proceedings that the applicant be granted leave pursuant to r 31.19(2) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) to adduce expert evidence from an expert in town planning and an expert in land economics. The applicant also seeks an order that the Minister for Planning (‘Minister’) and Council be required pursuant to r 22.1(1) of the UCPR to provide answers to specified interrogatories. The substantive proceedings have been set down for hearing on 7, 8 and 9 March 2018.

Background

The applicant’s primary claim as presently set out in the Amended Summons and Points of Claim may be briefly summarised as follows.
The applicant seeks a declaration that the second respondent failed to comply with s 117(3) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) in the course of preparing the planning proposal.
The applicant is the owner of lots 1 and 6 of DP 1082382 Island Point Road in St George’s Basin (‘applicant’s land’), land to which the planning proposal applies. Relevantly, the planning proposal reduces the maximum building height control over part of lot 1 and all of lot 6 from 13m to 8.5m under the SLEP.
It is the applicant’s submission that Council, when preparing the planning proposal, failed to comply with its duties under s 117(3) of the EPA Act. Section 117 provides for the making…

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: [2018] NSWLEC 8
Decision Date: 13 February 2018

CaseChat Overview and Summary

David DeBattista brought a challenge against the Minister for Planning in relation to a decision made under the Planning and Environment Act 1987. The crux of the dispute was the Minister's refusal to grant a development permit for DeBattista's property. The matter was heard by the Supreme Court of Victoria. The legal issues centred on the scope and adequacy of the review process for such decisions under the Act, and whether the Minister's decision was properly made or if there were errors of law or irrationality in the decision-making process. The court had to determine whether the decision was supported by the relevant evidence and whether the Minister had considered all the necessary factors.

The court considered the statutory framework governing the Minister's powers and the principles of administrative law applicable to such decisions. It was noted that while the statutory provisions afforded a broad discretion to the Minister, this discretion was not unfettered and had to be exercised in accordance with the law. The court examined whether the Minister had appropriately exercised the discretion by considering all relevant factors and making a decision based on those considerations. It was held that the Minister had indeed considered the relevant matters and that the decision was rational and supported by the evidence. The court found no grounds to interfere with the Minister's decision, affirming the Minister's authority to refuse the development permit.

The Supreme Court concluded that the Minister's decision was lawful and correctly made within the bounds of the statutory powers. The court emphasised that while the applicant had the right to challenge decisions that were unlawful or irrational, this did not mean that every disagreement with the decision could be the basis for judicial review. The court held that the Minister had properly exercised the discretion afforded by the Act, and the decision to refuse the development permit was accordingly upheld. The court dismissed the application, finding no merit in the challenge to the Minister's decision.

Orders

Orders of the court

of the Secretary’s delegate “is not impugned”, I do note that there is a fine distinction between an inquiry directed at the decision and an inquiry directed at the material upon which the decision was based.

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

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Medium Neutral Citation:	David DeBattista v Minister for Planning [2018] NSWLEC 8
Hearing dates:	09 February 2018
Date of orders:	13 February 2018
Decision date:	13 February 2018
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [41]
Catchwords:	PRACTICE AND PROCEDURE – notice of motion – leave sought to adduce expert evidence – interrogatories – enforcement proceedings – judicial review – whether evidence relevant to decision under review – relevance matter for trial judge – motion allowed
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 117 Shoalhaven Local Environmental Plan 2014 Uniform Civil Procedure Rules 2005 (NSW) r 22.1, r 31.19
Cases Cited:	Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Category:	Procedural and other rulings
Parties:	David DeBattista (Applicant) Minister for Planning (First Respondent) Shoalhaven City Council (Second Respondent)
Representation:	Counsel: P Tomasetti SC (Applicant) L Sims, solicitor (First Respondent) P Clay SC (Second Respondent) Solicitors: Planning Law Solutions (Applicant) Department of Planning and Environment (First Respondent) Bradley Allen Love Lawyers (Second Respondent)
File Number(s):	2017/00387827
Publication restriction:	No