Land and Environment Court
New South Wales
Medium Neutral Citation: EMRR Pty Ltd v Murray Shire Council [2016] NSWLEC 144 Hearing dates: 25 July 2016 Date of orders: 11 November 2016 Decision date: 11 November 2016 Jurisdiction: Class 1 Before: Sheahan J Decision: Appeal upheld. See orders at [106].
Catchwords: DEVELOPMENT APPLICATION – dispute about extension of the term of a consent for a “function centre” from one year to three years by deleting or modifying Council’s condition 8 – objecting neighbour joined as second respondent – Murray Local Environmental Plan 2011 (LEP) based on Standard Instrument – whether development on subject river front area prohibited by clause 7.4 of the LEP – interaction of clauses 2.8 and 7.4 of the LEP – whether development constitutes a temporary use of land for purposes of clause 2.8 – definition of temporary use – whether activities ancillary to the proposed temporary use of land should be included within the calculation of the maximum period allowed for temporary use Legislation Cited: Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Land and Environment Court Act 1979
Murray Development Control Plan 2012
Murray Local Environmental Plan 2011
Murray Regional Environmental Plan No 2 – Riverine LandCases Cited: Alcan NT (Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
AMP Inc v Utilux Pty Ltd [1972] RPC 103
Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] St R Qd 135
Beckwith v R (1976) 135 CLR 569; 12 ALR 333
Botany Bay City Council v Minister for Local Government & Ors (2016) 214 LGERA 173
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52
Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; 141 ALR 59; [1996] HCA 36
Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14; (2011) 5 ACTLR 271; 252 FLR 50
Commonwealth v Baume (1905) 2 CLR 405
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379
Davies and Jones v Western Australia (1904) 2 CLR 29; [1904] HCA 46
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5
Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322
Institute of Patent Agents v Lockwood [1894] AC 347
Ireland v Johnson, CEO Department of Corrective Services [2009] WASCA 162; (2009) 189 IR 135
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; 24 ALR 513
Lyons, Neville William & Anor v Registrar of Trade Marks & Anor (1983) 50 ALR 496; [1983] FCA 252
Marshall…
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Details
- Case
- [2016] NSWLEC 144
- Decision Date
CaseChat Overview and Summary
EMRR Pty Ltd sought judicial review of a decision by the Murray Shire Council to refuse to grant approval for an application to develop land. The matter was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether the council had exercised its discretion in accordance with the relevant statutory provisions and whether the decision was unreasonable.
The court found that the council had exercised its discretion by taking into account irrelevant considerations and failing to take into account relevant considerations. The court held that the decision was therefore invalid. The court further found that the decision was unreasonable because it was not based on a rational and consistent approach to the statutory criteria. The court held that the council had failed to properly consider the environmental impacts of the proposed development and had given undue weight to certain factors.
As a result of the court's findings, the appeal was upheld and the decision of the council was quashed. The court made orders for the matter to be remitted to the council for reconsideration in accordance with the court's directions. The court also made orders for costs in favour of the applicant.
The court found that the council had exercised its discretion by taking into account irrelevant considerations and failing to take into account relevant considerations. The court held that the decision was therefore invalid. The court further found that the decision was unreasonable because it was not based on a rational and consistent approach to the statutory criteria. The court held that the council had failed to properly consider the environmental impacts of the proposed development and had given undue weight to certain factors.
As a result of the court's findings, the appeal was upheld and the decision of the council was quashed. The court made orders for the matter to be remitted to the council for reconsideration in accordance with the court's directions. The court also made orders for costs in favour of the applicant.
Orders
Orders of the court
Appeal upheld. See orders at [106].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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