Graeme Sayer v Hastings Council - [1998] NSWLEC 99

Land and Environment Court

of New South Wales

CITATION: Graeme Sayer v. Hastings Council [1998] NSWLEC 99

PARTIES:
APPLICANT
Graeme Sayer
RESPONDENT
Hastings Council

FILE NUMBER(S): 10320 of 1997

CORAM: Sheahan J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Land & Environment Court Act 1979

CASES CITED: Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156;
Russo v Kogarah Council (1995) 86 LGERA 300 ;
House v The King (1936) 55 CLR 499;
R v Sidlow (1908) 1 Cr App. R.28, at p.29);
R v Wolff (1914) 10 Cr. App. R.107;
R v Dunbar (1928) 21 Cr.App.R.19, at p.20;
Skinner v The King (1913) 16 CLR 336, at p.340);
Whittaker v The King (1928) 41 CLR 230 at pp244-250);
Lovell v Lovell (1950) 81 CLR 513;
House v The King (at pp.518-9)

DATES OF HEARING: 20/05/98

DATE OF JUDGMENT:
06/05/1998

LEGAL REPRESENTATIVES:

APPLICANT
Mr J B Maston, Barrister
Mr K Byrnes, Falvey Byrnes Associates
RESPONDENT
Mr S Miles, Solicitor
Donovan Oates Hannaford

JUDGMENT:

This is an appeal pursuant to s 56A of the Land & Environment Court Act 1979 against a decision of Assessor Dr J Roseth on 16 January 1998, dismissing an appeal against a refusal by Hastings Council ("the Council") of three development applications involving the proposed erection of dwellings on each of lots 99, 100 and 101 of Deposited Plan 863070, Elfords Road , The Hatch.

The Hatch is an existing small community comprising about 15 houses.

The relevant locality is also referred to as Blackmans Point, and is located within the Council's area and the Parish of Cairncross, approximately 15km north of Port Macquarie.

The area is relevantly zoned for rural use and 40 ha parcels of land. There was only one Class 1 application, 1 hearing and 1 judgment - no distinction was drawn in the proceedings before the Council, or before Dr Roseth, among the three relevant development applications.

Tendered before me as Exhibit D was a copy of the map of Deposited Plan 863070. The three lots fronting Elfords Road have the following areas - lot 99, 2.560ha; lot 100, 1.848ha; and lot 101, 25.94ha.

At their southern boundaries the three lots are bounded by a public reserve, which would appear from the plan to be the riverbank of the Maria River, not far from its junction with the Hastings River.

The Hatch Road runs north-south and joins Elfords Road at the western end of lot 99, which also has a short frontage to The Hatch Road.

2. THIS APPEAL AND EARLIER PROCEEDINGS

The Grounds of Appeal document dated 9 February 1998, and filed 10 February 1998, specified the following three grounds:

"1. The Assessor erred in law in holding that he was not required to determine the Development Application for the erection of a dwelling house on each of the three allotments, the subject of the proceedings, when the Applicant lodged with the Respondent three separate Development Applications…

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: [1998] NSWLEC 99
Decision Date: 06/05/1998

CaseChat Overview and Summary

Graeme Sayer sought to appeal a decision of the Hastings Council to refuse three development applications, one for each of lots 99, 100, and 101 of Deposited Plan 863070, Elfords Road, The Hatch. The site is flood prone and was zoned for rural use. The Court of Appeal dismissed the appeal and the applicant now appeals to the Land and Environment Court. The appeal raises issues concerning the separate consideration of each of the three applications and the effect of the flood evacuation plan on the suitability of the site for development. The applicant argues that the Court of Appeal erred in law by failing to separately consider each application and by relying on a principle that evacuation plans should not be used to justify intensification of development on flood prone land. The Council submits that the Court of Appeal was correct to consider the applications together and that the principle is valid and correctly applied. The applicant argues that the Court of Appeal erred by finding that the evacuation plan did not justify further development. The Council submits that the Court of Appeal was correct to consider all evidence and to find that the principle correctly applied. The Court found that the Court of Appeal did not err in considering the applications together or in applying the principle. The Court of Appeal correctly considered the merits of the case and did not misdirect itself on the effect of the evacuation plan. The appeal is dismissed and the respondent's costs are to be paid by the applicant.

Orders