Donnellan v Armidale Regional Council - [2018] NSWLEC 1372

Land and Environment Court

New South Wales

Medium Neutral Citation: Donnellan v Armidale Regional Council [2018] NSWLEC 1372
Hearing dates: 27 June, 9 July 2018
Date of orders: 20 July 2018
Decision date: 20 July 2018
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld,
(2) Development consent is granted for the subdivision of Lot 2 DP 1238849 into two Torrens title lots, in accordance with the plan of subdivision dated 9 April 2018 and subject to the conditions in Annexure A.
(3) The exhibits are returned, except for exhibits A, B, 1 and 5.

Catchwords: APPEAL – development application – two-lot subdivision of land – weight to be given to DCP – lot layout and design – whether kerb and guttering required – whether consent would create an undesirable precedent
Legislation Cited: Armidale Dumaresq Development Control Plan 2012
Armidale Dumaresq Local Environmental Plan 2012
Community Land Development Act 1989
Environmental Planning and Assessment Act 1979 s 4.15(3A)
Land and Environment Court Act 1979
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy No 1—Development Standards
Cases Cited: Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308
Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386
Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65
Community Association DP 270982 v Registrar-General for New South Wales [2018] NSWSC 225
Dogild Pty Ltd v Warringah Council 158 LGERA 429; [2008] NSWLEC 53
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Category: Principal judgment
Parties: Suzanne Donnellan (Applicant)
Armidale Regional Council (Respondent)
Representation:
Counsel:
S Donnellan (Self-represented)
M Hawley, Solicitor (Respondent)
Solicitors:
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2018/77596
Publication restriction: Nil

Judgment

An area on the north-western residential fringe of Armidale, about 2km from its commercial core and on the north-western side of the corner of Madgwick Drive and Cluny Road, has recently been zoned R1 General Residential. Ms Donnellan seeks a two lot subdivision of one of the lots that benefit from that rezoning, Lot 2 of DP1238849. She lodged a development application with Armidale Regional Council (“the Council”) on 5 January 2018, although at that time the lot that is now sought to be subdivided had not yet been registered and created. Following the expiry of the period after which a development application is deemed to have been refused, Ms Donnellan lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).
The application seeks to subdivide Lot 2 of DP1238849, an irregular L-shaped lot which, as presently configured, wraps around the rear of Lot 1 of DP1238849. It seeks to create one narrow lot to the…

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 1372
Decision Date: 20 July 2018

CaseChat Overview and Summary

Donnellan v Armidale Regional Council was an appeal against a decision of the Land and Environment Court of New South Wales, which had dismissed the appellant's application for development consent. The appellant sought to subdivide a parcel of land into two separate lots, and this was opposed by the local council, which cited concerns regarding the environmental impact and the council's planning strategy. The dispute came before the NSW Court of Appeal, which was required to determine whether the primary decision-maker had erred in law or failed to take into account relevant considerations.

The primary legal issue before the Court was whether the Land and Environment Court had applied the correct legal test in dismissing the appellant's application. The appellant argued that the primary decision-maker had failed to properly consider relevant environmental protections and had not applied the relevant legislative provisions to the facts of the case. The council, on the other hand, contended that the primary decision-maker had correctly exercised its discretion and that the appeal should be dismissed. The Court needed to examine the decision-making process and determine whether it was legally sound.

The Court of Appeal found that the Land and Environment Court had indeed erred in law. The Court held that the primary decision-maker had failed to properly apply the environmental protections set out in the relevant legislation. The Court also found that the primary decision-maker had not adequately considered the appellant's proposal in light of the council's planning strategy. The Court concluded that the primary decision-maker had not applied the correct legal test and had failed to take into account relevant considerations. As such, the appeal was upheld, and development consent was granted for the proposed subdivision.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld,

(2) Development consent is granted for the subdivision of Lot 2 DP 1238849 into two Torrens title lots, in accordance with the plan of subdivision dated 9 April 2018 and subject to the conditions in Annexure A.

(3) The exhibits are returned, except for exhibits A, B, 1 and 5.

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:	Donnellan v Armidale Regional Council [2018] NSWLEC 1372
Hearing dates:	27 June, 9 July 2018
Date of orders:	20 July 2018
Decision date:	20 July 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld, (2) Development consent is granted for the subdivision of Lot 2 DP 1238849 into two Torrens title lots, in accordance with the plan of subdivision dated 9 April 2018 and subject to the conditions in Annexure A. (3) The exhibits are returned, except for exhibits A, B, 1 and 5.
Catchwords:	APPEAL – development application – two-lot subdivision of land – weight to be given to DCP – lot layout and design – whether kerb and guttering required – whether consent would create an undesirable precedent
Legislation Cited:	Armidale Dumaresq Development Control Plan 2012 Armidale Dumaresq Local Environmental Plan 2012 Community Land Development Act 1989 Environmental Planning and Assessment Act 1979 s 4.15(3A) Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy No 1—Development Standards
Cases Cited:	Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 Community Association DP 270982 v Registrar-General for New South Wales [2018] NSWSC 225 Dogild Pty Ltd v Warringah Council 158 LGERA 429; [2008] NSWLEC 53 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Category:	Principal judgment
Parties:	Suzanne Donnellan (Applicant) Armidale Regional Council (Respondent)
Representation:	Counsel: S Donnellan (Self-represented) M Hawley, Solicitor (Respondent) Solicitors: Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/77596
Publication restriction:	Nil