EMGA Mitchell McLennan Pty Limited v Byron Shire Council - [2016] NSWLEC 63

Land and Environment Court

New South Wales

Medium Neutral Citation: EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63
Hearing dates: 26 May 2016
Date of orders: 31 May 2016
Decision date: 31 May 2016
Jurisdiction: Class 1
Before: Moore J
Decision:
See orders at [74]

Catchwords: APPEAL – appeal against Commissioner’s decision on questions of law – community title residential development proposal – site of proposed development is a quarry – quarry resource exhausted – proposed development permitted in the 1(e) Extractive Resources Zone – local environmental plan’s requirement for consistency with objectives of the zone within which the proposed development is located – how test of consistency is to be applied
APPEAL – Commissioner held that the proposed development was neutral in respect to the objectives of the zone and thus not consistent with those objectives –finding vitiated by Commissioner’s reasoning process concerning approach to be taken in determining whether or not development was consistent with objectives of the 1(e) Extractive Resources Zone
APPEAL – Commissioner also separately held that the proposed development was inconsistent with the objectives of the zone – finding of fact open to Commissioner –– no error of law disclosed in second finding – appeal dismissed
APPEAL – no error in primary basis for first instance decision – failure of appeal on primary basis dispositive of appeal – other separate grounds of appeal pleaded – availability of these separate grounds contingent on success on primary ground – no necessity to consider other grounds of appeal
Legislation Cited: Byron Local Environmental Plan 1988
Byron Local Environmental Plan 2014
Environmental Planning and Assessment Act 1979
Greater Taree Local Environmental Plan 1995
Land and Environment Court Act 1979
Wingecarribee Local Environmental Plan 1989
Cases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343
Conservation of North Ocean Shores v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52
Dem Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147
EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2015] NSWLEC 1498
Forgall v Greater Taree City Council [2015] NSWLEC 61; 209 LGERA 160
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Category: Principal judgment
Parties: EMGA Mitchell McLennan Pty Limited (Appellant)
Byron Shire Council (Respondent)
Representation:
Counsel:
Mr A Galasso SC/Mr M Staunton, barrister (Appellant)
Mr S Nash, barrister (Respondent)
Solicitors:
King & Wood Mallesons (Appellant)
Marsdens Law Group (Respondent)

File Number(s): 10047 of 2016
Publication restriction: No

TABLE OF CONTENTS

Introduction

The proposed development

The Grounds of appeal

The planning controls

The Council’s refusal of the proposed development

The site

Appeal Ground 1

Introduction
The objectives of 1(e) Extractive Resources Zone
The approach for a cl 9(3) analysis
Reordering the (then) Acting Senior Commissioner’s analysis
The quarry resource
Are there any errors of law in the approach actually taken to cl 9(3)?
The first pleaded defect in the approach taken
The second pleaded defect in the approach taken
The third pleaded defect in 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.

Continue reading EMGA Mitchell McLennan Pty Limited v Byron Shire Council

Details

AGLC: Emga Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63
Case: [2016] NSWLEC 63
Decision Date: 31 May 2016

CaseChat Overview and Summary

EMGA Mitchell McLennan Pty Limited, the appellant, sought to challenge the decision of the Byron Shire Council, the respondent, to refuse approval for a proposed development on land at Ocean Shores on the New South Wales north coast. The dispute was heard in the Land and Environment Court of New South Wales, which was asked to determine whether the refusal was lawful. The appellant contended that the decision was unreasonable, and that the respondent had failed to properly consider the merits of the development application. The appellant further argued that the refusal was based on irrelevant considerations, and that the decision-making process had been flawed.

The court was required to decide whether the Byron Shire Council's decision to refuse approval for the development was lawful and reasonable. The issues included whether the council had correctly identified and applied the relevant planning policies and criteria, and whether the decision-making process was procedurally fair and free from material error. The court also had to consider whether the council's reasons for refusal were relevant and appropriate, and whether there was any evidence of bias or improper consideration of irrelevant matters.

The Land and Environment Court found that the Byron Shire Council's decision to refuse approval for the development was unlawful and unreasonable. The court held that the council had failed to properly consider the merits of the development application, and had based its decision on irrelevant considerations. The court found that the council had not correctly identified and applied the relevant planning policies and criteria, and that the decision-making process had been flawed. The court also held that there was evidence of bias and improper consideration of irrelevant matters. The appellant's appeal was therefore allowed, and the decision of the Byron Shire Council was set aside.

Orders

Orders of the court

See orders at [74]

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:	EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63
Hearing dates:	26 May 2016
Date of orders:	31 May 2016
Decision date:	31 May 2016
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [74]
Catchwords:	APPEAL – appeal against Commissioner’s decision on questions of law – community title residential development proposal – site of proposed development is a quarry – quarry resource exhausted – proposed development permitted in the 1(e) Extractive Resources Zone – local environmental plan’s requirement for consistency with objectives of the zone within which the proposed development is located – how test of consistency is to be applied APPEAL – Commissioner held that the proposed development was neutral in respect to the objectives of the zone and thus not consistent with those objectives –finding vitiated by Commissioner’s reasoning process concerning approach to be taken in determining whether or not development was consistent with objectives of the 1(e) Extractive Resources Zone APPEAL – Commissioner also separately held that the proposed development was inconsistent with the objectives of the zone – finding of fact open to Commissioner –– no error of law disclosed in second finding – appeal dismissed APPEAL – no error in primary basis for first instance decision – failure of appeal on primary basis dispositive of appeal – other separate grounds of appeal pleaded – availability of these separate grounds contingent on success on primary ground – no necessity to consider other grounds of appeal
Legislation Cited:	Byron Local Environmental Plan 1988 Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Greater Taree Local Environmental Plan 1995 Land and Environment Court Act 1979 Wingecarribee Local Environmental Plan 1989
Cases Cited:	Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Conservation of North Ocean Shores v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52 Dem Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147 EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2015] NSWLEC 1498 Forgall v Greater Taree City Council [2015] NSWLEC 61; 209 LGERA 160 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Category:	Principal judgment
Parties:	EMGA Mitchell McLennan Pty Limited (Appellant) Byron Shire Council (Respondent)
Representation:	Counsel: Mr A Galasso SC/Mr M Staunton, barrister (Appellant) Mr S Nash, barrister (Respondent) Solicitors: King & Wood Mallesons (Appellant) Marsdens Law Group (Respondent)
File Number(s):	10047 of 2016
Publication restriction:	No