GHD Pty Ltd v Palerang Council - [2009] NSWLEC 1342

Land and Environment Court

of New South Wales

CITATION: GHD Pty Ltd v Palerang Council [2009] NSWLEC 1342

PARTIES:
APPLICANT
GHD Pty Ltd
RESPONDENT
Palerang Council

FILE NUMBER(S): 11000 of 2008

CORAM: Brown C - Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- extraction of material and the filling of land to create a 40 lot residential subdivision - the impact on flooding - consistency with plan and zone objectives - consistency with the principles of ESD - riparian, geomorphological and hydrological impacts - stormwater disposal - noise - flood free access

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Yarrowlumla Local Environmental Plan 2002
NSW State Rivers and Estuaries Policy.

CASES CITED: Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190
Dem Gillespies v Warringah Council [2002] NSWLEC 224
Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34
Minister for Planning v Walker (2008) 161 LGERA 423

DATES OF HEARING: 11, 12, 13 August 2009

DATE OF JUDGMENT:
16 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan, barrister
SOLICITORS
Gadens
RESPONDENT
Mr I Hemmings, barrister
SOLICITORS
Williams Love & Nicol

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Pearson C

16 October 2009

11000 of 2008 GHD Pty Ltd v Palerang Council
JUDGMENT

1 COMMISSIONERS; This is an appeal against the refusal of Development Application DEV.2007.0360 by Palerang Council (the council) for the extraction of material and the filling of land to create a 40 lot residential subdivision at Turallo Terrace, between Duralla Street and Mecca Lane, Bungendore.

2 The proposed development requires approval under Fisheries Management Act 1994, National Parks and the Wildlife Act 1974, Protection of the Environment Operations Act 1997, and the Water Management Act 2000, and is integrated development pursuant to s91 of the Environmental Planning and Assessment Act 1979 (the EPA Act). An Environmental Impact Statement accompanied the development application.

The site

3 The site is approximately 133.8 ha and consists of Lots 273, 275 and 279 in DP 754915 and part Lot 1 in DP 747767 and is located on the north eastern side of Bungendore. The Goulbourn-Bombala Railway is located to the north-west. Lots 273, 275 and 279 are located on the northern side of Turallo Terrace and have a combined area of around 6.5 ha. Residential development within the existing village of Bungendore is located on the opposite side of Turallo Terrace. Lot 1 is located to the north of Lots 273, 275 and 279 and is separated from them by Turallo Creek. That part of Lot 1 to be used for the subdivision has an area of around 11.2 ha.

4 Turallo Creek is located within a well defined floodplain that extends around 200 m to the north and around 100 m south to the creek. An unnamed tributary of Turallo Creek discharges into the creek near the northern end of…

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.

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Details

Case: [2009] NSWLEC 1342
Decision Date: 16 October 2009

CaseChat Overview and Summary

GHD Pty Ltd appealed against the refusal by Palerang Council of a development application for the extraction of material and the filling of land to create a 40 lot residential subdivision at Turallo Terrace, Bungendore. The appeal was heard over three days in August 2009 and judgment was handed down in October 2009. The Land and Environment Court was required to decide whether the proposed development was consistent with the relevant objectives of the Yarrowlumla Local Environmental Plan 2002 (LEP 2002) and the objectives of the zones in which the land was situated. The Court also had to consider whether the proposed development was consistent with the principles of ecologically sustainable development (ESD). The appeal was dismissed and the development application was refused. The Court found that the proposed development was not consistent with the relevant objectives of LEP 2002 and the objectives of the zones in two respects. First, the Court found that the proposal was not consistent with the principles of ESD, in particular in relation to the riparian, geomorphological and hydrological issues of Turrallo Creek. The Court found that the proposal did not ensure that the land was developed in accordance with the principles of ESD. Second, the Court found that the proposal was inconsistent with the zone objectives for the 2(v) land on which the proposed residential subdivision was to be located. The Court found that the proposal did not recognise the natural and physical features of the village of Bungendore and did not prevent development in unsuitable areas, such as flood-prone land. The Court also found that the proposed development did not adequately address stormwater disposal, noise, and flood free access.

Orders