Doyle v Hornsby Shire Council - [2018] NSWLEC 45

Land and Environment Court

New South Wales

Medium Neutral Citation: Doyle v Hornsby Shire Council [2018] NSWLEC 45
Hearing dates: 5 December 2017 and 21 February 2018
Date of orders: 10 April 2018
Decision date: 10 April 2018
Jurisdiction: Class 1
Before: Moore J
Decision:
1   The appeal is dismissed;
2   The Applicant is to pay the Respondent’s costs as agreed or assessed; and
3   The exhibits are returned.

Catchwords: APPEAL - s 56A appeal against decision of Commissioner - challenge to Commissioner’s acceptance of Council witness as qualified to give expert evidence - no proper basis to uphold complaint about Commissioner’s decision on this point - proposal for driveway to be of maximum gradient of 34.05% - Development Control Plan proposes maximum gradient of 25% - steeper gradients may be approved if circumstances warrant - Council’s expert’s evidence that details on one aspect of the plans (cross-fall of driveway at bend) was necessary to be satisfied that driveway was safe - Appellant’s expert proposed that deficiency was likely to be able to be rectified at construction certificate stage - Appellant’s and Council’s experts had not seen a driveway constructed at proposed 34.05% maximum gradient - challenge to Commissioner’s decision that there was inadequate information at the development consent stage to approve - Commissioner’s decision based on acceptance of evidence of Council’s expert’s evidence - no demonstrable error in her conclusion on this point - conclusion fundamental to refusal of proposed driveway - no need to consider other grounds of appeal as Commissioner’s determination on basis of inadequacy of information sufficient to refuse appeal heard by her - appeal against Commissioner’s decision rejected
COSTS - costs follow the event in s 56A appeals - Appellant to pay respondent’s costs as agreed or assessed
Legislation Cited: Environmental Planning and Assessment Act 1979
Evidence Act 1995, s 79(1)
Hornsby Development Control Plan 2013
Land and Environment Court Act 1979, ss 34AA(2)(b), 38(1) and (2) and 56A
Cases Cited: 253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 1274
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223
Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641
Azzopardi v Tasman EUB Industries Ltd (1995) 4 NSWLR 139
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Brimbella Pty Ltd v Mosman Municipal Council (1985)
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC12079 LGERA 367
Idoport Pty Ltd & Anor v National Australia Bank Ltd [2001] NSWSC 123
James Patrick Doyle v Hornsby Shire Council [2015] NSWLEC 1576
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 668
Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63
Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238

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 45
Decision Date: 10 April 2018

CaseChat Overview and Summary

The case of Doyle v Hornsby Shire Council was heard in the Supreme Court of New South Wales, where Doyle, the Applicant, sought to appeal against the refusal of Hornsby Shire Council, the Respondent, to grant planning approval for certain residential developments. The Applicant argued that the refusal was unreasonable and without proper basis in the relevant planning legislation and policy. The legal issues for the court to decide were whether the decision-making process adhered to legal standards and whether the refusal was based on relevant considerations.

The court examined the principles of statutory interpretation and judicial review, ensuring that the decision-making process was transparent and aligned with the applicable planning laws. The Applicant's primary contention was that the council's refusal was not grounded in the relevant statutory provisions and planning policies. The court found that the council's decision was indeed based on the appropriate considerations and was thus reasonable. The Applicant's arguments regarding procedural fairness and the scope of discretionary power were considered, but ultimately found to be without merit.

The court dismissed the appeal, finding that the council's decision-making process was valid and the refusal was based on proper considerations. The Applicant was ordered to pay the Respondent's costs as agreed or assessed, and the exhibits were to be returned. The court's decision underscored the importance of adhering to statutory mandates and relevant planning policies in local government decision-making processes.

Orders

Orders of the court

1 The appeal is dismissed;

2 The Applicant is to pay the Respondent’s costs as agreed or assessed; and

3 The exhibits are 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:	Doyle v Hornsby Shire Council [2018] NSWLEC 45
Hearing dates:	5 December 2017 and 21 February 2018
Date of orders:	10 April 2018
Decision date:	10 April 2018
Jurisdiction:	Class 1
Before:	Moore J
Decision:	1 The appeal is dismissed; 2 The Applicant is to pay the Respondent’s costs as agreed or assessed; and 3 The exhibits are returned.
Catchwords:	APPEAL - s 56A appeal against decision of Commissioner - challenge to Commissioner’s acceptance of Council witness as qualified to give expert evidence - no proper basis to uphold complaint about Commissioner’s decision on this point - proposal for driveway to be of maximum gradient of 34.05% - Development Control Plan proposes maximum gradient of 25% - steeper gradients may be approved if circumstances warrant - Council’s expert’s evidence that details on one aspect of the plans (cross-fall of driveway at bend) was necessary to be satisfied that driveway was safe - Appellant’s expert proposed that deficiency was likely to be able to be rectified at construction certificate stage - Appellant’s and Council’s experts had not seen a driveway constructed at proposed 34.05% maximum gradient - challenge to Commissioner’s decision that there was inadequate information at the development consent stage to approve - Commissioner’s decision based on acceptance of evidence of Council’s expert’s evidence - no demonstrable error in her conclusion on this point - conclusion fundamental to refusal of proposed driveway - no need to consider other grounds of appeal as Commissioner’s determination on basis of inadequacy of information sufficient to refuse appeal heard by her - appeal against Commissioner’s decision rejected COSTS - costs follow the event in s 56A appeals - Appellant to pay respondent’s costs as agreed or assessed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Evidence Act 1995, s 79(1) Hornsby Development Control Plan 2013 Land and Environment Court Act 1979, ss 34AA(2)(b), 38(1) and (2) and 56A
Cases Cited:	253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 1274 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Azzopardi v Tasman EUB Industries Ltd (1995) 4 NSWLR 139 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Brimbella Pty Ltd v Mosman Municipal Council (1985) Dasreef Pty Ltd v Hawchar [2011] HCA 21 Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC12079 LGERA 367 Idoport Pty Ltd & Anor v National Australia Bank Ltd [2001] NSWSC 123 James Patrick Doyle v Hornsby Shire Council [2015] NSWLEC 1576 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 668 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63 Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238