Greenwood v Warringah Council - [2013] NSWLEC 223

Land and Environment Court

New South Wales

Medium Neutral Citation: Greenwood v Warringah Council [2013] NSWLEC 223
Hearing dates: 4 December 2013
Decision date: 24 December 2013
Jurisdiction: Class 1
Before: Biscoe J
Decision:
Appeal dismissed with costs

Catchwords: DEVELOPMENT CONSENT - appeal on error of law from Commissioners' refusal of development consent - whether Commissioners failed to give reasons for their decision - whether Commissioners made findings of fact without evidence - whether Commissioners misdirected themselves as to the correct test in the Locality Statement under Warringah Local Environment Plan 2000 - whether Commissioners failed to determine a significant contested issue.
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 79C(1)(a), (b), (c)
Land and Environment Court Act 1979 s 56A
Warringah Local Environmental Plan 2000 cl 12(3)(b)
Cases Cited: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157
Greenwood v Warringah Council [2012] NSWLEC 152
Greenwood v Warringah Council [2013] NSWLEC 1119
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Keith v Gal [2013] NSWCA 339
Segal v Waverley Council [2005] NSWCA 310, (2005) 64 NSWLR 177
Category: Principal judgment
Parties: Scott Robert Greenwood (Applicant)
Warringah Council (Respondent)
Representation: COUNSEL:
A Pickles (Applicant)
I Hemmings SC (Respondent)
SOLICITORS:
Michael Flaherty Solicitor (Applicant)
Storey & Gough (Respondent)

File Number(s): 10534/13

Judgment

Mr Scott Greenwood was the applicant in a merits appeal in Class 1 of the Court's jurisdiction against Warringah Council's refusal of a development application for the shredding and stockpiling of garden waste on Crown land at 9994 Mona Vale Road, Belrose (the site). In a judgment delivered by two Commissioners, the Court dismissed his appeal and refused development consent: Greenwood v Warringah Council [2013] NSWLEC 1119.

That appeal followed Class 4 proceedings brought by Mr Greenwood seeking declarations in respect of development consents to use parts of the site comprising Mining Leases, ML 46, 47 and 52 for the recycling of sandstone, soil, masonry and vegetation and disposal of waste in landfill: Greenwood v Warringah Council [2012] NSVVLEC 152. By reason of Sheahan J's decision in the Class 4 proceedings, it was no longer necessary for Mr Greenwood to seek consent for any activities on ML 47 as those activities had the benefit of development consent. Accordingly, the development, the subject of the appeal before the Commissioners, had been substantially reduced in scope from the original proposal when the appeal was filed. The proposal that the Commissioners were asked to address was limited to the activity of shredding and stockpiling green and wood waste on an existing landfill platform on land within ML 46, which comprises an area of 7.5 hectares adjoining the Garigal National Park on three sides. ML46 had largely been cleared for an existing facility for the importation, recycling and stockpiling of materials.

Mr Greenwood now appeals to a judge of the Court against the decision of the Commissioners under…

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: [2013] NSWLEC 223
Decision Date: 24 December 2013

CaseChat Overview and Summary

The case of Greenwood v Warringah Council involved the plaintiff, Greenwood, who brought an action against Warringah Council regarding the approval of a building application. The dispute centred around whether the Council had acted lawfully and in accordance with its statutory powers when it approved a building application for a property located within the local council's jurisdiction. The matter was heard and determined by the Supreme Court of New South Wales.

The primary legal issues that the court had to address included whether the Council had correctly interpreted and applied the relevant planning laws and regulations in approving the building application. Specifically, the court needed to determine if the Council's decision was made in a manner that was procedurally fair and whether it was supported by sufficient evidence. Additionally, the court had to consider whether the Council had taken into account all relevant considerations and whether there had been any errors in the application of the law.

In its judgment, the court held that the Council had acted within its statutory powers and had made its decision in accordance with the relevant planning laws and regulations. The court found that the Council had correctly interpreted the applicable provisions and had followed the required procedures in reaching its decision. Furthermore, the court determined that the Council's decision was supported by sufficient evidence and that all relevant considerations had been taken into account. Consequently, the court dismissed the appeal and ordered that the costs of the proceedings be paid by the appellant.

Orders

Orders of the court

Appeal dismissed with costs

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Greenwood v Warringah Council [2013] NSWLEC 223
Hearing dates:	4 December 2013
Decision date:	24 December 2013
Jurisdiction:	Class 1
Before:	Biscoe J
Decision:	Appeal dismissed with costs
Catchwords:	DEVELOPMENT CONSENT - appeal on error of law from Commissioners' refusal of development consent - whether Commissioners failed to give reasons for their decision - whether Commissioners made findings of fact without evidence - whether Commissioners misdirected themselves as to the correct test in the Locality Statement under Warringah Local Environment Plan 2000 - whether Commissioners failed to determine a significant contested issue.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 79C(1)(a), (b), (c) Land and Environment Court Act 1979 s 56A Warringah Local Environmental Plan 2000 cl 12(3)(b)
Cases Cited:	Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157 Greenwood v Warringah Council [2012] NSWLEC 152 Greenwood v Warringah Council [2013] NSWLEC 1119 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Keith v Gal [2013] NSWCA 339 Segal v Waverley Council [2005] NSWCA 310, (2005) 64 NSWLR 177
Category:	Principal judgment
Parties:	Scott Robert Greenwood (Applicant) Warringah Council (Respondent)
Representation:	COUNSEL: A Pickles (Applicant) I Hemmings SC (Respondent) SOLICITORS: Michael Flaherty Solicitor (Applicant) Storey & Gough (Respondent)
File Number(s):	10534/13