Easter Developments Pty Ltd v Shoalhaven City Council - [2024] NSWLEC 1676

Land and Environment Court

New South Wales

Medium Neutral Citation: Easter Developments Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1676
Hearing dates: 26 August 2024
Date of orders: 24 October 2024
Decision date: 24 October 2024
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders that
(1) The appeal is dismissed.
(2) Development application No 21/2577 for demolition of garage and 3 lot Torrens title subdivision at 21 Duncan Street Vincentia is determined by the refusal of consent.
(3) All exhibits are retained.

Catchwords:
DEVELOPMENT APPEAL – remitted matter – Torrens title subdivision – bushfire prone land – reliance on public land for bushfire asset protection – integrated development – no bushfire safety authority from NSW Rural Fire Service – merit assessment of whether the site is suitable for the proposed development through the lens of Planning for Bushfire Protection 2019 - orders

Legislation Cited:
Conveyancing Act 1919, s 88B
Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.14
Land and Environment Court Act 1979, ss 39, 56A
Local Government Act 1993, ss 25, 36
Rural Fires Act 1997, ss 63, 100A, 100B
Rural Fires Regulation 2022, ss 15, 42, 45

Cases Cited:
Easter Developments Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1671
Easter Developments Pty Ltd v Shoalhaven City Council No 2 [2023] NSWLEC 1732
Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49

Texts Cited:
Planning for Bush Fire Protection 2019

Category: Principal judgment
Parties: Easter Developments Pty Ltd ACN 608 163 122 (Applicant)
Shoalhaven City Council (Respondent)
Representation:
Counsel:
A Pearman (Applicant)
T March (Respondent)
Solicitors:
BCP Lawyers & Consultants (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2022/341747
Publication restriction: No

Judgment

COMMISSIONER: I have been given this matter on remitter from the decision of Preston CJ in Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49 (s 56A Appeal) where Shoalhaven City Council (the Council) appealed under s 56A of the Land and Environment Court Act 1979 (LEC Act) against my earlier decision as a Commissioner of the Court, to grant development consent to a three-lot residential Torrens title subdivision at 21 Duncan Street, Vincentia (the land) to be carried out by Easter Developments Pty Limited (Easter Developments).
Preston CJ identified the central issue to be the Proposed Development’s compliance with the document, Planning for Bush Fire Protection 2019 (PBP), which provides development standards for development on bush fire prone land (at [2]-[4] in the s56A Appeal). At [3] of the s 56A Appeal Preston CJ notes that:

3. […] it was common ground and the evidence established that, as both the land on which the proposed development was to be carried out and the Council land were bush fire prone land, an APZ was required to provide bush fire protection for the proposed development, and the APZ distance was required to be 21.5m, of which 15.5m would be on the land and 6m would be on the adjoining Council land.

The PBP provides a suite…

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: [2024] NSWLEC 1676
Decision Date: 24 October 2024

CaseChat Overview and Summary

The case of Easter Developments Pty Ltd v Shoalhaven City Council involves a dispute between the applicant, Easter Developments, and the respondent, Shoalhaven City Council, regarding the approval of a development application. The applicant sought consent for the demolition of a garage and a three-lot subdivision of a Torrens title property located at 21 Duncan Street, Vincentia. The Shoalhaven City Council had previously refused the development application, and Easter Developments appealed this decision to the Land and Environment Court. The primary legal issues before the court were whether the Council's decision to refuse the development application was lawful, rational, and in accordance with the relevant planning laws and policies.

In examining the appeal, the court considered whether the decision to refuse the development application was made in accordance with the relevant statutory and policy frameworks, including the Environmental Planning and Assessment Act 1979 (NSW) and the Shoalhaven City Council Local Environmental Plan 2013. The court assessed the evidence provided by both parties, including expert reports, planning documents, and submissions on the impact of the proposed development on the local environment and community. The court also considered the specific provisions of the Local Environmental Plan that pertained to the site in question, including any relevant heritage, environmental, and urban design considerations.

After thorough deliberation, the court concluded that the Shoalhaven City Council's decision to refuse the development application was lawful and justified. The court found that the Council's assessment of the application was rational and consistent with the statutory and policy frameworks. The court also determined that the proposed development did not align with the objectives of the Local Environmental Plan, particularly in relation to preserving the character of the area and protecting the local environment. The court further noted that the potential adverse impacts of the proposed development on neighbouring properties and the broader community were significant. As a result, the court dismissed the appeal and upheld the Council's decision to refuse the development application.

Orders

Orders of the court

The Court orders that

(1) The appeal is dismissed.

(2) Development application No 21/2577 for demolition of garage and 3 lot Torrens title subdivision at 21 Duncan Street Vincentia is determined by the refusal of consent.

(3) All exhibits are retained.

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:	Easter Developments Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1676
Hearing dates:	26 August 2024
Date of orders:	24 October 2024
Decision date:	24 October 2024
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders that (1) The appeal is dismissed. (2) Development application No 21/2577 for demolition of garage and 3 lot Torrens title subdivision at 21 Duncan Street Vincentia is determined by the refusal of consent. (3) All exhibits are retained.
Catchwords:	DEVELOPMENT APPEAL – remitted matter – Torrens title subdivision – bushfire prone land – reliance on public land for bushfire asset protection – integrated development – no bushfire safety authority from NSW Rural Fire Service – merit assessment of whether the site is suitable for the proposed development through the lens of Planning for Bushfire Protection 2019 - orders
Legislation Cited:	Conveyancing Act 1919, s 88B Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.14 Land and Environment Court Act 1979, ss 39, 56A Local Government Act 1993, ss 25, 36 Rural Fires Act 1997, ss 63, 100A, 100B Rural Fires Regulation 2022, ss 15, 42, 45
Cases Cited:	Easter Developments Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1671 Easter Developments Pty Ltd v Shoalhaven City Council No 2 [2023] NSWLEC 1732 Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49
Texts Cited:	Planning for Bush Fire Protection 2019
Category:	Principal judgment
Parties:	Easter Developments Pty Ltd ACN 608 163 122 (Applicant) Shoalhaven City Council (Respondent)
Representation:	Counsel: A Pearman (Applicant) T March (Respondent) Solicitors: BCP Lawyers & Consultants (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2022/341747
Publication restriction:	No