Forgall Pty Ltd v Greater Taree City Council

[2015] NSWCA 340

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Forgall Pty Ltd v Greater Taree City Council [2015] NSWCA 340
Hearing dates:	27 October 2015
Decision date:	27 October 2015
Before:	Basten JA; Simpson JA
Decision:	(1)   Application for leave to appeal dismissed.  (2)   Applicant to pay the respondent’s costs in this Court.
Catchwords:	APPEAL – civil – application for leave – decision of judge of Land and Environment Court on appeal from decision of Commissioner in Class 1 jurisdiction – whether arguable error – whether issue of principle – whether procedural unfairness – whether detailed landscape plan required – whether “concession” by Council that plan could form part of conditions of consent   PLANNING AND ENVIRONMENT – development prohibited unless consistent with objectives of zone – onus on applicant to satisfy Court that condition complied with – preparation of draft conditions if consent forthcoming
Legislation Cited:	Land and Environment Court Act 1979 (NSW), ss 56A, 57
Cases Cited:	Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Category:	Principal judgment
Parties:	Forgall Pty Ltd (Applicant) Greater Taree City Council (Respondent)
Representation:	Counsel: Mr A Crossland/Mr D Sweeney (Applicant) Mr A Gallasso SC (Respondent)   Solicitors: LS Law (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2015/151782
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2015] NSWLEC 61 Date of Decision: 23 April 2015 Before: Preston CJ File Number(s): LEC 10682 of 2014

Judgment

1. JUDGMENT of THE COURT delivered by BASTEN JA: On 2 May 2008 the applicant, Forgall Pty Ltd, lodged a development application, later amended, with the respondent Council seeking to build what was described as a “post-operative and complementary health clinic for cancer patients and other seriously ill people” on land at Saltwater Road, Wallabi Point. The development was prohibited unless it satisfied objectives stated with respect to the relevant zone in the applicable Greater Taree Local Environmental Plan. The Council rejected the application. The applicant brought an appeal in the Class 1 jurisdiction of the Land and Environment Court. The appeal was dismissed on 30 June 2014 by Commissioner Dixon. An appeal lay from the Commissioner’s decision to a judge of the Land and Environment Court pursuant to s 56A of the Land and Environment Court Act1979 (NSW). The appeal was limited to a question of law.

2. The applicant lodged an appeal from the decision of the Commissioner. Relevantly for present purposes, the appeal raised an issue of procedural unfairness in the manner the Commissioner had disposed of the application before her. The appeal was dismissed by Preston CJ (LEC) on 23 April 2015. [1]

   1. Forgall Pty Ltd v Greater Taree City Council [2015] NSWLEC 61 (“Forgall”).

3. The applicant seeks leave to appeal from the judgment of Preston CJ pursuant to s 57 of the Land and Environment Court Act. Leave is required pursuant to s 57(4).

4. The sole issue sought to be raised concerns the complaint of procedural unfairness on the part of Commissioner Dixon, said to arise from her decision to reject the appeal because there was an absence of “final detail of the landscaping proposed on the land”. [2] The applicant submitted that because the parties had, according to standard practice, formulated conditions which would apply were consent to be granted, which conditions included the submission of a landscape plan, that constituted a “concession” that a landscape plan was not required to accompany the development application. The applicant described this as a concession which led it to believe that no fine detail landscaping plan was required in order to satisfy the Commissioner that the application should be approved.

   2.    Draft notice of appeal, par 1; not being the Commissioner’s words.

5. The Council submitted that there was no concession, but merely a recognition that if the applicant were otherwise successful a landscaping plan would be a necessary condition of the consent, none having been prepared and supplied with the development application. That submission should be accepted.

6. Further, as explained by Preston CJ, the Commissioner only had power to grant consent if the proposed development fell within the classification in the rural general zone of development which could be carried out with consent. The applicant’s development would be prohibited if it failed to comply with the objectives of the plan, and specifically:

“(a)   the protection or conservation of environmental values of land and visual amenity, including landscape and scenic quality, rural character and tourism values;

(b)   the enabling of development for purposes that are appropriate in a rural location, or

(c)   the enabling of development for purposes that are sympathetic with environmental characteristics of the land”. [3]

3. Forgall at [17].

7. As the Chief Judge correctly noted, the applicant bore the burden of establishing the facts upon which that evaluation could be undertaken. [4] The proposition that the applicant was in some way misled into thinking that it did not need to establish a detailed landscaping plan in order to obtain consent was not based upon any aspect of the material which is before this Court.

   4. Forgall at [78].

8. The first argument dealt with the pleading. The pleading of contentions by the Council included reference to the local environmental plan and what was prohibited in the zone, namely that which was not consistent with the objectives of the zone. The objectives were set out and identified in detail in the contentions.

9. The next step in the applicant’s argument was that at the very end of the Council’s document there was reference to “insufficient information” and in that paragraph there was no reference to the need for a landscaping plan. There was a need, however, for there to be enough evidence to allow the Commissioner to be satisfied that the objectives, identified as noted above, had been satisfied.

10. The second argument was based on the fact that the experts engaged in pre-trial joint conferencing which did not give rise to any apparent complaint about the lack of a detailed landscaping plan. The Court was taken to the report of the conclave which was held on 27 February and 2 March 2014. It is clear from the statements in the report that there were outstanding serious concerns in dispute between the party experts as to whether or not the development would comply with the relevant objectives.

11. There was a later addendum to the report of 18 March 2014 which demonstrated that the same issues were still in play just before the trial commenced on Monday 24 March. When the matter came on for hearing before the Commissioner, it is clear that there were still questions about the absence of a detailed landscape plan. The applicant itself sought to produce a document, not claimed to be a detailed landscape plan, but which proposed various aspects of development which might assist in diminishing the adverse impact of the proposal, particularly with respect to asset protection zones.

12. It is not necessary to go through the detail of how all those matters worked their way through the proceedings. It is sufficient to say that there was no express agreement that any aspect of the affirmative case referable to the three particular objectives which have been identified was not in play.

13. The Chief Judge was satisfied that both parties had the opportunity to adduce all the evidence they wished in relation to that issue. [5] It was clear that the Council’s expert considered that the indicative landscaping plan was inadequate in a number of respects. [6] The Chief Judge then stated:

“[83]   These deficiencies were raised in the evidence of the planners at the hearing, in the discussion between the parties’ solicitors and the Commissioner at the time of questioning of Mr Fish and the tender of the indicative landscaping plan, and in final submissions. Forgall did not meet this issue by preparing and tendering at the hearing a final landscaping plan that overcame these deficiencies in the indicative landscaping plan. Instead, Forgall elected to meet the issue by submitting that it would be sufficient for the Court to grant consent subject to the draft condition 8(h) that would require Forgall to submit such a final landscaping plan for approval with the construction certificate.

[84]   This course of action carried with it a risk. Establishing that Forgall’s proposed development was not prohibited but rather was permissible with consent was a precondition to the Court having power to grant consent to the proposed development. A final landscaping plan might assist in establishing that the proposed development was not inconsistent with the relevant zone objectives and hence was not prohibited but instead permissible. However, in order for a final landscaping plan to assist in this regard, it would need to be submitted before and not after consent was granted. Nevertheless, Forgall chose to pursue the course of action of submitting the final landscaping plan after and not before consent was granted.

…

[86]   Forgall’s failure to adduce sufficient evidence (including a final landscaping plan) at the hearing to demonstrate that its proposed development was not inconsistent with the relevant objectives of the Rural General Zone and hence was not prohibited but rather was permissible with consent lay at its own feet: see likewise in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc. [7] ”

5. Forgall at [79].

6.    Forgall at [80]-[83].

7. (2014) 86 NSWLR 527; [2014] NSWCA 105 at [143] (as in original); see also at [144].

14. The Chief Judge set out in detail the process of reasoning by which he reached the conclusion that there was no procedural unfairness infecting the decision of the Commissioner. No arguable basis for challenging that finding has been established. Nor is there any issue of principle raised by the reasoning of the Chief Judge.

15. For these reasons the application for leave to appeal must be dismissed and the applicant must pay the respondent’s costs in this Court.

**********

Endnotes

Decision last updated: 03 November 2015