Greenwood v Warringah Council - [2014] NSWCA 205

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Greenwood v Warringah Council [2014] NSWCA 205
Hearing dates: 24 June 2014
Decision date: 24 June 2014
Before: Ward JA; Leeming JA
Decision:
Leave to appeal is refused with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - Land and Environment Court - leave to appeal - decision of a judge of the Land and Environment Court on a s 56A appeal - whether to grant leave to appeal under s 57(4) of the Land and Environment Court Act 1979 - need to identify question of law material to decision sought to be impugned - no error of law in dispositive reasoning - leave refused
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 97
Land and Environment Court Act 1979 (NSW), ss 56A, 57
Cases Cited: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52
Category: Principal judgment
Parties: Scott Robert Greenwood (Applicant)
Warringah Council (Respondent)
Representation: Counsel:
A Pickles / J McKelvey (Applicant)
I Hemmings SC / M Seymour (Respondent)
Solicitors:
Michael Flaherty (Applicant)
Storey and Gough Lawyers (Respondent)

File Number(s): 11797/2014
Decision under appeal

Jurisdiction:

9106

Citation:

[2013] NSWLEC 223

Date of Decision:

2013-12-24 00:00:00

Before:

Biscoe J

File Number(s):

2013/10534

Judgment

JUDGMENT OF THE COURT delivered by LEEMING JA: The applicant, Mr Scott Greenwood, seeks leave to appeal pursuant to s 57 of the Land and Environment Court Act 1979 (NSW) from a decision of the primary judge (Biscoe J), made on 24 December 2013: [2013] NSWLEC 223. His Honour dismissed an appeal brought pursuant to s 56A of the Land and Environment Court Act from the decision of two Commissioners (Dixon C and Ritchie AC) made on 18 June 2013: [2013] NSWLEC 1119. Those Commissioners, after a six day hearing and with the advantage of a view, dismissed an appeal in Class 1 of the jurisdiction of the Land and Environment Court from the respondent Council's refusal of the applicant's development application (DA 2010/1822) for the shredding and stockpiling of green and wood materials on Crown land on Mona Vale Road, Belrose.

The nature of the appeal pursuant to s 56A, heard and determined by the primary judge, was one confined to a question of law. Likewise, any appeal from the decision of the primary judge to this Court is confined to a question of law.

Further, although the proceedings before the primary judge were final in nature, an appeal to this Court only lies by leave: s 57(4)(c). That reflects, in…

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: [2014] NSWCA 205
Decision Date: 24 June 2014

CaseChat Overview and Summary

Scott Greenwood sought leave to appeal to the Court of Appeal of New South Wales from a decision of Biscoe J in the Land and Environment Court. Biscoe J had dismissed an appeal brought under section 56A of the *Land and Environment Court Act 1979* (NSW) from a decision of two Commissioners. The Commissioners had previously dismissed an appeal from Warringah Council's refusal of Mr Greenwood's development application for the shredding and stockpiling of green and wood materials on Crown land at Mona Vale Road, Belrose.

The legal issues before the Court of Appeal were whether to grant leave to appeal under section 57(4) of the *Land and Environment Court Act 1979*. This required the applicant to identify a question of law that was material to the decision of the primary judge sought to be impugned. The Court noted that appeals from a section 56A appeal are confined to questions of law, and that leave to appeal is required even though the primary judge's decision was final.

The Court found that there was no error of law in the dispositive reasoning of the primary judge. Consequently, leave to appeal was refused.

Orders

Orders of the court

Leave to appeal is refused with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT delivered by LEEMING JA: The applicant, Mr Scott Greenwood, seeks leave to appeal pursuant to s 57 of the Land and Environment Court Act 1979 (NSW) from a decision of the primary judge (Biscoe J), made on 24 December 2013: [2013] NSWLEC 223. His Honour dismissed an appeal brought pursuant to s 56A of the Land and Environment Court Act from the decision of two Commissioners (Dixon C and Ritchie AC) made on 18 June 2013: [2013] NSWLEC 1119. Those Commissioners, after a six day hearing and with the advantage of a view, dismissed an appeal in Class 1 of the jurisdiction of the Land and Environment Court from the respondent Council's refusal of the applicant's development application (DA 2010/1822) for the shredding and stockpiling of green and wood materials on Crown land on Mona Vale Road, Belrose. The nature of the appeal pursuant to s 56A, heard and determined by the primary judge, was one confined to a question of law. Likewise, any appeal from the decision of the primary judge to this Court is confined to a question of law. Further, although the proceedings before the primary judge were final in nature, an appeal to this Court only lies by leave: s 57(4)(c). That reflects, in part, the fact that a party disappointed by a decision on an appeal under s 56A will normally have already enjoyed, as in this case, or be entitled to, a review on the merits by a judge or commissioner, as well as an appeal on a question of law. It is necessary in order to give content to the procedural history outlined above, to say something of the land in respect of which the applicant seeks development approval. The site in Mona Vale has had a relatively complex planning history. The Commissioners recorded at [2] that: The development application was refused by Council on 25 March 2011. The applicant propounded an amended application in merits review proceedings brought pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (NSW). In those proceedings, the respondent Council filed what ultimately became a further amended Statement of Facts and Contentions (on 4 December 2012) which included [9]: "insufficient information has been submitted for a proper and accurate assessment to be made of the development application"; a series of 12 particulars were provided in relation to the Council's contention. The reasons of the Commissioners address the nature of the proposal, the Council's contentions, the planning framework and statutory controls, the site and its context and development history and then three particular topics: acoustic evidence about a bund wall, details as to the proposed operational plan, and "desired future character". The latter was a reference to cl 12(3)(b) of the former LEP, which the parties agreed continued to be applicable in the assessment of the application which had been lodged prior to its repeal. Under the heading "Desired Future Character" the clause provided, inter alia, that "the natural landscape including landforms and vegetation will be protected and, where possible, enhanced". Under each of those three headings were summarised the evidence bearing on those issues and the Council's submissions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Greenwood v Warringah Council [2014] NSWCA 205
Hearing dates:	24 June 2014
Decision date:	24 June 2014
Before:	Ward JA; Leeming JA
Decision:	Leave to appeal is refused with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - Land and Environment Court - leave to appeal - decision of a judge of the Land and Environment Court on a s 56A appeal - whether to grant leave to appeal under s 57(4) of the Land and Environment Court Act 1979 - need to identify question of law material to decision sought to be impugned - no error of law in dispositive reasoning - leave refused
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 97 Land and Environment Court Act 1979 (NSW), ss 56A, 57
Cases Cited:	Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52
Category:	Principal judgment
Parties:	Scott Robert Greenwood (Applicant) Warringah Council (Respondent)
Representation:	Counsel: A Pickles / J McKelvey (Applicant) I Hemmings SC / M Seymour (Respondent) Solicitors: Michael Flaherty (Applicant) Storey and Gough Lawyers (Respondent)
File Number(s):	11797/2014
Decision under appeal	Jurisdiction: 9106 Citation: [2013] NSWLEC 223 Date of Decision: 2013-12-24 00:00:00 Before: Biscoe J File Number(s): 2013/10534