Greenwood v Warringah Council - [2013] NSWLEC 1119

Land and Environment Court

New South Wales

Medium Neutral Citation: Greenwood v Warringah Council [2013] NSWLEC 1119
Hearing dates: 20 and 21 February 2013, 19 and 20 March and 18 April 2013 and 3 May 20913
Decision date: 18 June 2013
Jurisdiction: Class 1
Before: Dixon C
Ritchie AC
Decision:
(1)The appeal is dismissed.
(2)The development application (DA2010/1822) for the shredding and stockpiling of green and wood materials on Crown land at 9994 Mona Vale Road, Belrose is refused consent.
(3)The exhibits are returned.

Catchwords: APPEAL - development application for the expansion of a landfill and waste recovery facility on Crown land to incorporate the shredding and stockpiling of green and wood materials; acoustic impacts, inadequate information
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Warringah Local Environmental Plan 2011
Warringah Local Environmental Plan 2000
Cases Cited: Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302
Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 at paras [29-30]
Greenwood v Warringah Council [2012] NSWLEC 152
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289
Vigor Master Pty Limited v Warringah Council [2008] NSWLEC 1128
Wang and Anor v Canterbury City Council [2013] NSWLEC 1098
Category: Principal judgment
Parties:
Scott Robert Greenwood (Applicant)
Warringah Council (Respondent)
Representation:
Counsel
Mr A Pickles
Mr M Flaherty (Applicant)

Mr I Hemmings
Mr A Gough (Respondent)
Solicitors
Michael Flaherty Solicitors (Applicant)
Storey and Gough Lawyers (Respondent)

File Number(s): 10405 of 2011

Judgment

The applicant, Scott Robert Greenwood, conducts a landfill and waste recovery facility on Crown land at 9994 Mona Vale Road, Belrose. The business is known locally as "Greenwood's Quarry "and involves the receipt of waste materials for the screening of recyclable material such as timber, steel and brickwork. The materials recovered are stockpiled temporarily before removal off site for resale. Any inert waste remaining is used as landfill or for restoration in the shale quarries on the land.

The business operates on the site under a Permissive Occupancy and a series of Mining/Mineral Leases (ML 46, ML47 and ML52) from the Crown. There is also an Environmental Protection Licence (EPL 4669) in place authorising the disposal and storage of particular waste on ML46 and ML47. These proceedings concern a development application (DA2010/1822) for the use of a part of ML46 for the shredding and stockpiling of green and wood waste.

The original development application was lodged with Warringah Council on 3 November 2010 and refused by the Council on 25 March 2011. This is an appeal from that decision, under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act), but it relates to an amended application. Before I describe the amendments it is appropriate to explain how a jurisdictional issue, concerning the absence of landowner's consent, outstanding at the conclusion of the hearing, has now been resolved.

Owner's Consent - jurisdictional issue

On 18 April 2013 and while the matter was part heard, the Court…

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 1119
Decision Date: 18 June 2013

CaseChat Overview and Summary

The appellant, Greenwood, challenged a decision of the Warringah Council to refuse consent to a development application (DA2010/1822) concerning the shredding and stockpiling of green and wood materials on Crown land at 9994 Mona Vale Road, Belrose. The respondent argued that the proposed development would have significant environmental and amenity impacts, contrary to the relevant planning policies. The case was heard in the Land and Environment Court of New South Wales.

The court was required to determine whether the refusal of consent by the Council was lawful and whether the appellant had demonstrated that the proposed development would not result in significant adverse environmental or amenity impacts. The court also needed to consider whether the refusal was based on irrelevant considerations and whether there were any procedural errors in the decision-making process.

The court found that the decision to refuse consent was lawful, as the appellant had not demonstrated that the proposed development would not result in significant adverse environmental or amenity impacts. The court considered that the proposed development would have significant impacts on the surrounding environment and would be contrary to the relevant planning policies. The court also found that the decision was not based on irrelevant considerations and that there were no procedural errors in the decision-making process. As a result, the appeal was dismissed, and the development application was refused consent.

The court ordered that the appeal be dismissed, that the development application (DA2010/1822) be refused consent, and that the exhibits be returned.

Orders

Orders of the court

(1)The appeal is dismissed.

(2)The development application (DA2010/1822) for the shredding and stockpiling of green and wood materials on Crown land at 9994 Mona Vale Road, Belrose is refused consent.

(3)The exhibits are returned.

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 1119
Hearing dates:	20 and 21 February 2013, 19 and 20 March and 18 April 2013 and 3 May 20913
Decision date:	18 June 2013
Jurisdiction:	Class 1
Before:	Dixon C Ritchie AC
Decision:	(1)The appeal is dismissed. (2)The development application (DA2010/1822) for the shredding and stockpiling of green and wood materials on Crown land at 9994 Mona Vale Road, Belrose is refused consent. (3)The exhibits are returned.
Catchwords:	APPEAL - development application for the expansion of a landfill and waste recovery facility on Crown land to incorporate the shredding and stockpiling of green and wood materials; acoustic impacts, inadequate information
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Warringah Local Environmental Plan 2011 Warringah Local Environmental Plan 2000
Cases Cited:	Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 at paras [29-30] Greenwood v Warringah Council [2012] NSWLEC 152 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Vigor Master Pty Limited v Warringah Council [2008] NSWLEC 1128 Wang and Anor v Canterbury City Council [2013] NSWLEC 1098
Category:	Principal judgment
Parties:	Scott Robert Greenwood (Applicant) Warringah Council (Respondent)
Representation:	Counsel Mr A Pickles Mr M Flaherty (Applicant) Mr I Hemmings Mr A Gough (Respondent) Solicitors Michael Flaherty Solicitors (Applicant) Storey and Gough Lawyers (Respondent)
File Number(s):	10405 of 2011