Fitton v Central Coast Council - [2022] NSWLEC 1215

Land and Environment Court

New South Wales

Medium Neutral Citation: Fitton v Central Coast Council [2022] NSWLEC 1215
Hearing dates: 15-16 March 2022, written submissions received on 6 April 2022
Date of orders: 2 May 2022
Decision date: 02 May 2022
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development Application DA/190/2021 seeking approval for dual occupancy (detached) and associated earthworks and tree removal at 93 Vales Road Mannering Park is determined by way of refusal.
(2) The exhibits are retained except for exhibits 1, A and C.

Catchwords:
DEVELOPMENT APPLICATION – dual occupancy detached, access via right of way – whether the essential services required for the development are available – whether adequate arrangements have been made to make suitable vehicular access available – whether the precondition for essential services is met – development consent refused.

Legislation Cited:
Conveyancing Act 1919, Pt 1, Sch 8
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, s 34AA
Wyong Local Environmental Plan, cll 7.2, 7.9

Cases Cited:
RTA ‘Guide to Traffic Generating Development’ October 2002
Wyong Development Control Plan 2013

Texts Cited:
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Huntington & Macgillivray v Hurstville Council and Ors [2004] NSWLEC 694
Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155
Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council (2020) 247 LGERA 221; [2020] NSWCA 137 Opera Properties v Northern Beaches Council [2017] NSWLEC 1507
Young & Anor v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 1914

Category: Principal judgment
Parties: Annabel Lees Fitton (Applicant)
Central Coast Council (Respondent)
Representation:
Counsel:
A Pickup (Applicant)
J Fan (Respondent)
Solicitors:
Pickup Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2021/338910
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA 190/2021) by the Central Coast Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The development application seeks development consent for a detached dual occupancy development comprising an existing dwelling and the construction of a new two storey dwelling with associated earthworks and tree removal. The development is proposed at 93 Vales Road, Mannering Park (Lot 3 DP 23968).
The appeal was subject to conciliation on 15 March 2022 (s 34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached, and conciliation was terminated. The proceedings were dealt with as a hearing.
At the commencement of the hearing the Applicant sought to amend their development application in response to the evidence in the joint reports. I am satisfied that the Respondent as the relevant consent authority has agreed, under cl 55 of the Environmental…

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 Fitton v Central Coast Council

Details

AGLC: Fitton v Central Coast Council [2022] NSWLEC 1215
Case: [2022] NSWLEC 1215
Decision Date: 02 May 2022

CaseChat Overview and Summary

The appeal before the Land and Environment Court of New South Wales involved the applicant, Ms Fitton, and the respondent, Central Coast Council. Ms Fitton sought to appeal the Council's decision to refuse her development application for a dual occupancy structure and related earthworks and tree removal at a property on Vales Road in Mannering Park. The Council's refusal was based on various grounds, including the potential impact on the local environment and community character, as well as non-compliance with local planning policies.

The central legal issues before the Court were whether the Council's decision was lawful and whether there were errors in the Council's assessment of the development application. Ms Fitton argued that the Council had failed to adequately consider the benefits of the proposed development and had made errors in assessing the environmental impact. The Council, on the other hand, maintained that its decision was well-founded and in accordance with relevant planning policies and environmental guidelines.

After considering the arguments and evidence presented by both parties, the Court found that the Council's decision was lawful and that there were no errors in the assessment process. The Court held that the proposed development would have a significant adverse impact on the local environment and community character, and that the development did not comply with relevant planning policies. Consequently, the Court dismissed the appeal and upheld the Council's decision to refuse the development application. The Court also ordered that certain exhibits be retained for future reference, while others were to be discarded.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application DA/190/2021 seeking approval for dual occupancy (detached) and associated earthworks and tree removal at 93 Vales Road Mannering Park is determined by way of refusal.

(2) The exhibits are retained except for exhibits 1, A and C.

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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Medium Neutral Citation:	Fitton v Central Coast Council [2022] NSWLEC 1215
Hearing dates:	15-16 March 2022, written submissions received on 6 April 2022
Date of orders:	2 May 2022
Decision date:	02 May 2022
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application DA/190/2021 seeking approval for dual occupancy (detached) and associated earthworks and tree removal at 93 Vales Road Mannering Park is determined by way of refusal. (2) The exhibits are retained except for exhibits 1, A and C.
Catchwords:	DEVELOPMENT APPLICATION – dual occupancy detached, access via right of way – whether the essential services required for the development are available – whether adequate arrangements have been made to make suitable vehicular access available – whether the precondition for essential services is met – development consent refused.
Legislation Cited:	Conveyancing Act 1919, Pt 1, Sch 8 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34AA Wyong Local Environmental Plan, cll 7.2, 7.9
Cases Cited:	RTA ‘Guide to Traffic Generating Development’ October 2002 Wyong Development Control Plan 2013
Texts Cited:	Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Huntington & Macgillivray v Hurstville Council and Ors [2004] NSWLEC 694 Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155 Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council (2020) 247 LGERA 221; [2020] NSWCA 137 Opera Properties v Northern Beaches Council [2017] NSWLEC 1507 Young & Anor v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 1914
Category:	Principal judgment
Parties:	Annabel Lees Fitton (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: A Pickup (Applicant) J Fan (Respondent) Solicitors: Pickup Legal (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2021/338910
Publication restriction:	No