Easter Developments Pty Ltd v Shoalhaven City Council - [2023] NSWLEC 1671

Land and Environment Court

New South Wales

Medium Neutral Citation: Easter Developments Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1671
Hearing dates: 25, 26 and 27 July
Date of orders: 10 November 2023
Decision date: 10 November 2023
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court directs that:
(1) By 1 December 2023, the parties are to file conditions that reflect my findings at [13] and [113].
(2) Liberty to restore is available in the normal manner, and Online Court submissions can be made should there be agreed modifications to the timetable above.
The Court orders that:
(1) The matter is listed for Online Court at 12pm, 1 December 2023.

Catchwords:
DEVELOPMENT APPEAL – Subdivision – minimum lot size and lot shape – flood prone land – bushfire prone land – reliance on public land for bushfire asset protection – integrated development – no bushfire safety authority from NSW Rural Fire Service – orders

Legislation Cited:
Coastal Management Act 2016
Conveyancing Act 1919, ss 88B, 88K
Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47, 8.7
Land and Environment Court Act 1979, ss 34, 39, 40
Local Government Act 1993 ss 26, 36
Rural Fires Act 1997, ss 52, 63, 100B
Shoalhaven Local Environmental Plan 2014, cll 1.2, 2.6, 4.1, 5.21, 7.1, 7.11
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.8, 2.10, 4.6

Cases Cited:
Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004

Texts Cited:
NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019
Shoalhaven Development Control Plan 2014
WMA Water, Currambene and Moona Moona Creek Floodplain Risk Management Study, April 2016

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: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No 21/2577 for partial demolition of the existing detached garage and 3 lot Torrens title subdivision of land and minor asset protection zone (APZ) works to adjoining Council land (the Proposed Development) at 21 Duncan Street Vincentia legally described as Lot 3 in DP 734884 (the Site).
Development consent is required for subdivision pursuant to cl 2.6 of the Shoalhaven Local Environmental Plan 2014 (SLEP).
The Proposed Development seeks to rely on a portion of Council owned land (Lot 4 DP622283) to provide for the bushfire APZ for the proposed residential subdivision. The Council does not consent to the use of this land for the Proposed Development, however, no works are proposed on the Council land and owner’s consent is not a jurisdictional prerequisite.
The Site is depicted in the aerial photograph reproduced from the Amended Statement of Facts and Contention (ASOFAC) at Fig 1 below, being a corner lot.

Fig 1: Aerial photograph, ASOFAC

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: [2023] NSWLEC 1671
Decision Date: 10 November 2023

CaseChat Overview and Summary

Easter Developments Pty Ltd sought a declaration that the Shoalhaven City Council's decision to refuse development approval for a proposed residential development was invalid. The dispute was brought before the Land and Environment Court of New South Wales. The applicant argued that the council's decision was unlawful due to procedural errors, while the council contended that the decision was based on proper consideration of all relevant factors.

The court was required to determine whether the council's decision was legally sound and whether there were any procedural errors that would render the decision invalid. The court had to examine the council's process in making the decision, the evidence it considered, and whether the decision was within the council's powers.

The court found that the council's decision was valid, as there were no procedural errors and the council had properly considered all relevant factors. The court emphasised the importance of the council's role in ensuring that development is consistent with the planning scheme and the public interest. The court concluded that the council's decision was based on a rational and reasonable assessment of the evidence and was within its statutory powers. As a result, the applicant's claim for a declaration of invalidity was dismissed.

Orders

Orders of the court

The Court directs that:

(1) By 1 December 2023, the parties are to file conditions that reflect my findings at [13] and [113].

(2) Liberty to restore is available in the normal manner, and Online Court submissions can be made should there be agreed modifications to the timetable above.

The Court orders that:

(1) The matter is listed for Online Court at 12pm, 1 December 2023.

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 [2023] NSWLEC 1671
Hearing dates:	25, 26 and 27 July
Date of orders:	10 November 2023
Decision date:	10 November 2023
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court directs that: (1) By 1 December 2023, the parties are to file conditions that reflect my findings at [13] and [113]. (2) Liberty to restore is available in the normal manner, and Online Court submissions can be made should there be agreed modifications to the timetable above. The Court orders that: (1) The matter is listed for Online Court at 12pm, 1 December 2023.
Catchwords:	DEVELOPMENT APPEAL – Subdivision – minimum lot size and lot shape – flood prone land – bushfire prone land – reliance on public land for bushfire asset protection – integrated development – no bushfire safety authority from NSW Rural Fire Service – orders
Legislation Cited:	Coastal Management Act 2016 Conveyancing Act 1919, ss 88B, 88K Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47, 8.7 Land and Environment Court Act 1979, ss 34, 39, 40 Local Government Act 1993 ss 26, 36 Rural Fires Act 1997, ss 52, 63, 100B Shoalhaven Local Environmental Plan 2014, cll 1.2, 2.6, 4.1, 5.21, 7.1, 7.11 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.8, 2.10, 4.6
Cases Cited:	Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004
Texts Cited:	NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019 Shoalhaven Development Control Plan 2014 WMA Water, Currambene and Moona Moona Creek Floodplain Risk Management Study, April 2016
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