Davies v Penrith City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davies v Penrith City Council [2013] NSWLEC 1141

Hearing dates:

24 June 2013

Decision date:

31 July 2013

Jurisdiction:

Class 1

Before:

Moore SC

Decision:

Directions given for the electronic filing of conditions to permit a significantly reduced development and one confined to being behind the building line being granted development consent.

Catchwords:

AGENTS: Requirements of s 63 of the Land and Environment Court Act 1979 and rule 7.7 of the Land and Environment Court Rules 2007; conduct of agent (Mr R Creighton) in these proceedings

PLANNING PRINCIPLES: Revision of the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444; revised planning principle for assessing impacts on neighbouring properties

DEVELOPMENT APPLICATION: Compliance with objectives of Local Environmental Plan; role of prohibition in Development Control Plan; streetscape; consistency with neighbouring development

Legislation Cited:

Land and Environment Court Rules 2007
Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Courts and Other Legislation Amendment Act 2012
Civil Procedure Act 2005
Land and Environment Court Rules (Amendment No 1) 2013
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Penrith Local Environmental Plan 1998 (Urban Land)

Cases Cited:

Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Pafburn v North Sydney Council [2005] NSWLEC 444
Grant v Kiama Municipal Council [2006] NSWLEC 70
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Category:

Principal judgment

Parties:

G Davies (Applicant)

Penrith City Council (Respondent)

Representation:

Counsel
Ms L M Saw (Applicant)
Mr S Nash (Respondent)
Solicitors
Legal Section,
Penrith Council (Respondent)

File Number(s):

10269 of 2013

Publication restriction:

No

Judgment

INDEX
Topic	Paragraph
Introduction	1
My refusing Mr. Creighton leave to appear as agent	4
Legislative history of agents' roles in the Court	10
Mr Creighton's initial participation	29
The period until the site inspection	37
The site inspection	50
Appearing" - the process	60
The proceedings in court	66
Amendment to the plans	78
Mr Creighton's post hearing communication	80
The scope of s 56 of the Civil Procedure Act 2005	83
Concluding comments concerning Mr Creighton's behaviour	86
Mr Davies' proposed carport
The relevant planning framework	92
The Development Control Plan	99
The weight to be given to the DCP	105
The setting and an introduction to the application	108
Revision of the Planning Principle in Pafburn	116
Admission of evidence	122
Consideration of the planning issues	125
Conclusion	150
Conditions of consent	155
Directions	161

Introduction

1. SENIOR COMMISSIONER: An appeal concerning a proposal to erect a carport at the front of a suburban dwelling, as is this appeal, would not, ordinarily, lead to consideration and discussion of the Land and Environment Court Act 1979 (the Court Act) and the Land and Environment Court Rules 2007 (the Court Rules).

1. However, during the course all this appeal, I refused leave to Mr. Creighton to appear as agent for Mr. Davies. This judgement sets out my reasons for making that decision…