Hill v Blacktown City Council - [2007] NSWLEC 401

Reported Decision: 154 LGERA 418

Land and Environment Court

of New South Wales

CITATION: Hill v Blacktown City Council [2007] NSWLEC 401

PARTIES:
APPLICANT
William Hill
RESPONDENT
Blacktown City Council

FILE NUMBER(S): 10838 of 2006

CORAM: Jagot J

KEY ISSUES: Appeal :- s 56 appeal - new issue on appeal - issue of construction of planning instrument - whether development permissible - whether development could be carried out under an environment or planning instrument where prohibited by a development standard - conditions - validity - appeal and cross-claim dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 - Development Standards
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Blacktown Local Environmental Plan 1988

CASES CITED: Colonial State Properties Pty Ltd v Ku-ring-gai Council [2002] NSWLEC 179;
Commissioner for Railways v Agalianos (1955) 92 CLR 390;
Coulton v Holcombe (1986) 162 CLR 1;
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379;
Dino Seraglio v Fairfield City Council No. 10516 of 1996 [1997] NSWLEC 4 (17 January 1997);
Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139 ;
Griffith University v Tang (2005) 221 CLR 99;
Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95;
Hill v Blacktown City Council [2007] NSWLEC 108;
Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 ;
Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630;
Newbury District Council v Secretary of State for the Environment [1981] AC 578 ;
O'Brien v Komesaroff (1982) 150 CLR 310 ;
Porfiri v Ku-ring-gai Council (2002) 122 LGERA 98;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ;
Sofi v Wollondilly Shire Council (1975) 31 LGERA 416;
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305;
The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178 ;
Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86

DATES OF HEARING: 20 June 2007

DATE OF JUDGMENT:
11 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Bisits, solicitor
SOLICITORS
A Bisits Solicitor
RESPONDENT
Mr A Galasso SC with Mr P R Clay
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

11 July 2007

10838 of 2006

WILLIAM HILL
Applicant

BLACKTOWN CITY COUNCIL
Respondent
JUDGMENT

Jagot J:

A. Issues

1 On 8 March 2007 a Commissioner of this Court determined an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) by determining to grant development consent to a development application proposing to erect a single storey detached dwelling at 93 Barton Street, Marsden Park (Hill v Blacktown City Council [2007] NSWLEC 108). Under s 56A of the Land and Environment Court Act 1979 (the LEC Act) a party may appeal…

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: [2007] NSWLEC 401
Decision Date: 11 July 2007

CaseChat Overview and Summary

In the matter of Hill v Blacktown City Council, the Land and Environment Court of New South Wales dismissed an appeal and cross-claim concerning the construction of a dwelling on a parcel of land zoned for environment conservation. The applicant, William Hill, sought to demolish an existing dwelling and erect a new one, subject to obtaining development consent. The Blacktown City Council opposed the application on various grounds, including that the proposed development was not permissible under the applicable environmental planning instruments. The case involved complex legal issues regarding the interpretation of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and the applicability of certain conditions imposed by the consent authority.

The court held that the Council was permitted to raise a new issue on appeal, as it was necessary in the interests of justice to determine whether the proposed dwelling was permissible under the environmental planning instruments. The court found that the proposed dwelling was permissible with consent, as it was of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the commencement of the Sydney Region Growth Centres SEPP. The court also determined that the conditions imposed on the consent were valid, as they were for a planning purpose, fairly and reasonably related to the development, and not so unreasonable that no authority would have imposed them.

Ultimately, the court dismissed the appeal and cross-claim, with all questions of costs to be argued separately. The decision highlights the importance of considering the context and purpose of environmental planning instruments when determining the permissibility of development and the validity of conditions imposed on consent.

Orders