David v Hornsby Shire Council - [2017] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation: David v Hornsby Shire Council [2017] NSWLEC 1025
Hearing dates: 16 December 2016
Date of orders: 27 January 2017
Decision date: 27 January 2017
Jurisdiction: Class 1
Before: Hussey AC
Decision:
The Court orders that:
(1)   The appeal is dismissed
(2)   Development consent to DA/1130/2014 for the subdivision of Lot 4 (No 8A) Edwards Road, Hornsby into two lots is refused.
(3)   The exhibits may be returned except for 1, 4, 5, 7, A, B and C.

Catchwords: Development application; 2 lot residential subdivision, discharge of drainage, suitable discharge point, natural watercourse.
Legislation Cited:
EP&A Act 1979

Hornsby Development Control Plan 2013

Hornsby Local Environmental Plan 2013 ("HLEP 2013"); under which the site is within the R2 (Low Density Residential) Zone

Hornsby Shire Council Section 94 Development Contributions Plan 2014.
Sydney Regional Environmental Plan 20 - Hawkesbury River Catchment
Cases Cited:
Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382

Gartner v Kidman [1962] HCA 27; 108 CLR
Knezovic v Shire of Swan-Guildford [1968] HCA 38
Category: Principal judgment
Parties: Paul David (Applicant)
Hornsby Shire Council (Respondent)
Representation:
Counsel:
Ms J Reid (Applicant)
Solicitors:
Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)

File Number(s): 2016/00155970

Judgment

Background

This matter concerns an appeal against Council’s refusal of a development application proposing a 2 lot residential subdivision at 8A Edwards Road, Wahroonga. The proposed lots are:

Lot 1; 500 sqm (excluding access handle)

Lot 2; 553 sqm (excluding access handle).

The application was refused for a number of reasons primarily concerning the adequacy of the drainage management and discharge arrangements. These concerns relate to whether there is a satisfactory point of discharge, the legal status of the downstream area in terms whether or not this area is classified as a natural watercourse or whether a drainage easement is required over the downstream properties.

The site

The site is known as Lot 4 DP 224106, 8A Edwards Road, Wahroonga. It is a battle-axe shaped lot utilising a shared accessway and has an area of 1,233m7 (including access handle) and contains a dwelling house.
The shared access handle leading from Edwards Road to the subject site is approximately 45m long. Lots 3, 4 and 6 (10A, 8A and 10 Edwards Road) have battleaxe handles (3.05m, 3.05m and 3.66m wide respectively) providing access to Edwards Road and making up a right of carriageway. Legal access to the site is via rights of way which exist over the battleaxe handles of 10A, 8A and 10 Edwards Road.

2.4 The subject site has a gentle slope towards the centre of the site, with the lowest point being towards the rear boundary of 8 Edwards Road which is in front of the subject site. There are a number of trees on the site including exotic, native and local species. Towards the rear of the site there is a two storey brick home with a double garage.

There…

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: [2017] NSWLEC 1025
Decision Date: 27 January 2017

CaseChat Overview and Summary

David brought an appeal against the decision of Hornsby Shire Council to refuse his application for development consent to subdivide Lot 4 (No 8A) Edwards Road, Hornsby. The Local Land Services Authority had objected to the application and the Council refused it. The applicant sought to appeal the refusal of the application, arguing that the Council had failed to have regard to relevant considerations and to exercise its discretion in accordance with the law. The applicant contended that the refusal was unreasonable and that the Council had failed to have regard to the principles of good planning and sustainable development. The Court of Appeal was required to determine whether the refusal of the application was lawful and whether the Council had exercised its discretion in accordance with the law. The Court had to consider whether the Council had failed to have regard to relevant considerations and whether the decision was unreasonable. The Court also had to consider whether the applicant had demonstrated that the refusal of the application was unlawful and whether the Council had exercised its discretion in an unreasonable manner.

The Court found that the applicant had failed to demonstrate that the refusal of the application was unlawful or that the Council had failed to have regard to relevant considerations. The Court held that the Council had exercised its discretion in accordance with the law and that the decision was reasonable. The Court found that the applicant had not demonstrated that the refusal of the application was unreasonable or that the Council had failed to have regard to the principles of good planning and sustainable development. The Court found that the applicant had failed to establish that the decision was unlawful or that the Council had failed to exercise its discretion in accordance with the law. The Court held that the appeal was not well-founded and dismissed it. The Court further ordered that development consent to DA/1130/2014 for the subdivision of Lot 4 (No 8A) Edwards Road, Hornsby into two lots is refused. The exhibits may be returned except for 1, 4, 5, 7, A, B and C.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed

(2) Development consent to DA/1130/2014 for the subdivision of Lot 4 (No 8A) Edwards Road, Hornsby into two lots is refused.

(3) The exhibits may be returned except for 1, 4, 5, 7, A, B and C.

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 v Hornsby Shire Council [2017] NSWLEC 1025
Hearing dates:	16 December 2016
Date of orders:	27 January 2017
Decision date:	27 January 2017
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	The Court orders that: (1) The appeal is dismissed (2) Development consent to DA/1130/2014 for the subdivision of Lot 4 (No 8A) Edwards Road, Hornsby into two lots is refused. (3) The exhibits may be returned except for 1, 4, 5, 7, A, B and C.
Catchwords:	Development application; 2 lot residential subdivision, discharge of drainage, suitable discharge point, natural watercourse.
Legislation Cited:	EP&A Act 1979 Hornsby Development Control Plan 2013 Hornsby Local Environmental Plan 2013 ("HLEP 2013"); under which the site is within the R2 (Low Density Residential) Zone Hornsby Shire Council Section 94 Development Contributions Plan 2014. Sydney Regional Environmental Plan 20 - Hawkesbury River Catchment
Cases Cited:	Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382 Gartner v Kidman [1962] HCA 27; 108 CLR Knezovic v Shire of Swan-Guildford [1968] HCA 38
Category:	Principal judgment
Parties:	Paul David (Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: Ms J Reid (Applicant) Solicitors: Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	2016/00155970