Evans v Maclean Shire Council - [2004] NSWLEC 89

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Evans and Another v Maclean Shire Council and Another [2004] NSWLEC 89

PARTIES:
APPLICANTS
Sandra Evans
Robert Evans

FIRST RESPONDENT
Maclean Shire Council

SECOND RESPONDENT
Integrated Site Design Pty Ltd (for Primrose Levi Pty Ltd)

CASE NUMBER: 10913 of 2003

CATCH WORDS: Costs

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 98

CORAM: Talbot J

DATES OF HEARING: 11/03/2004

DECISION DATE: 19/03/2004

LEGAL REPRESENTATIVES

APPLICANTS
Ms S Winters (Barrister)
SOLICITORS
NA

FIRST RESPONDENT
Mr J B Maston (Barrister)
SOLICITORS
Pickering Priestley

SECOND RESPONDENT
Mr A Hawkes (Solicitor)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10913 of 2003
Talbot J
19 March 2004

Sandra Evans
Robert Evans

Applicants

v

Maclean Shire Council

First Respondent

Integrated Site Design Pty Ltd (for Primrose Levi Pty Ltd)

Second Respondent

Judgment

Introduction

By application class 4 the applicants in the proceedings, Sandra and Roberts Evans, appealed against the determination of the first respondent, Maclean Shire Council (“the council”), to grant development consent to development application No. LDA 2003/0112 made by the second respondent, Integrated Site Design Pty Limited (for Primrose Levi Pty Ltd) in respect of the expansion of a caravan park at Palmers Island.
As can be seen from [1] in the judgment I delivered in the matter on 19 December 2003, an earlier application for development consent had been lodged with the council in 1999. That development application was rejected on the basis that it was in respect of designated development and required the lodgement of an Environmental Impact Statement (“EIS”). The second development application was lodged with an EIS as an application for the approval of designated development.
The applicants lodged an objection to the second development application and subsequently appealed to this Court, pursuant to s 98 of the Environmental Planning and Assessment Act 1979.
Following commencement of the proceedings the applicants sought to argue a number of issues. Firstly, a question of law was raised by way of a notice of motion filed on 18 August 2003. Secondly, both legal and merits issues were set out in a draft Statement of Issues dated 18 September 2003. Following a preliminary hearing before the Chief Judge on 21 and 22 October 2003, further points of law were raised by the applicants in a Revised Statement of Issues dated 30 October 2003. Hearing dates were allocated for four days commencing on 15 December 2003.
On 6 November 2003 the second respondent filed a notice of motion seeking leave to raise a preliminary question whether the development application the subject of the appeal is not an application for designated development and that, accordingly, the appeal is null and void.
On 1 December 2003 the applicants filed a notice of motion dated 27 November 2003 seeking leave to file class 4 proceedings for determination of a legal question raised in the appeal proceedings and that the class 1 proceedings be stayed pending determination of the class 4…

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.

Keep reading for free

Create a free CaseChat account to read Evans v Maclean Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWLEC 89
Decision Date: 19 March 2004

CaseChat Overview and Summary

Sandra and Robert Evans appealed the Maclean Shire Council's decision to grant development consent to Primrose Levi Pty Ltd for the expansion of a caravan park at Palmers Island. The council had previously rejected a similar development application in 1999, but later granted consent to the second application, which included an Environmental Impact Statement. The Evans objected and appealed to the Land and Environment Court, raising both legal and merits issues. The second respondent, Integrated Site Design Pty Ltd, contested the appeal's validity, prompting the court to determine its jurisdiction over the matter.

The central legal issue was whether the development application constituted designated development, as required for the court's jurisdiction. The court found that the development was not designated development, as the sewerage treatment works were subordinate to the caravan park purpose. This decision aligned with the precedent set by Foodbarn Pty Limited and Others v Solicitor-General (1975). The respondents subsequently sought costs from the Evans for the proceedings, arguing that the Evans should have discontinued the appeal once it became apparent that the development was not designated development. The Evans argued that the respondents' conduct leading up to and during the litigation effectively invited the appeal, and that they should not be penalised for defending against the notices of motion.

The court found that the respondents' conduct, both before and during the litigation, had effectively invited the Evans to appeal. The court held that the principle of awarding costs to the successful party should be modified in light of the respondents' previous conduct, which had led the Evans to believe they had a right to appeal. As a result, the court dismissed the respondents' applications for costs, ordering each respondent to pay half of the Evans' costs for the notices of motion.

The court's final orders were that the notices of motion dated 24 December 2003 and 15 January 2004 by the second and first respondents, respectively, were dismissed. The first and second respondents were each ordered to pay one half of the applicants' costs in respect of those notices of motion.

Orders