Hill v Blacktown City Council - [2007] NSWLEC 108

Land and Environment Court

of New South Wales

CITATION: Hill v Blacktown City Council [2007] NSWLEC 108

PARTIES:
APPLICANT
William Hill
RESPONDENT
Blacktown City Council

FILE NUMBER(S): 10838 of 2006

CORAM: Bly C

KEY ISSUES: Development Application :- Dwelling house, minimum lot size, growth centres policy, environmental conservation, aims and objectives, concurrence

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Blacktown Local Environmental Plan 1988
Land and Environment Court Act 1979

CASES CITED: Winten Property Group Pty Ltd v North Sydney Council [2001] NSWLEC 4

DATES OF HEARING: 19/12/2006

DATE OF JUDGMENT:
8 March 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Bisits, solicitor
RESPONDENT
Mr T O'Connor, solicitor
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

8 March 2007

10838 of 2006 William Hill v Blacktown City Council
JUDGMENT

Introduction
The appeal

1 This appeal relates to Development Application No. 04-424, which is for the construction of a single storey detached dwelling at 93 Barton Street, Marsden Park.

The site

2 The site comprises Lots 29, 30, 31 and 32, s 6, DP 1146. Each of the four lots has a frontage of 10.06 m to Barton Street and together the four lots have an area of 1, 618.8 sq m.

3 Existing on the site is a detached dwelling house with various outbuildings. Reticulated water and sewerage services are not available.

The locality

4 According to the Statement of Basic Facts (as revised by the applicant) this part of Marsden Park comprises vacant bushland lots and some parcels of a rural nature. There are three or four detached dwellings in the vicinity of the site. The bush land generally surrounding the site is highly degraded as a result of clearing, soil removal, rubbish dumping and bushfires.

5 This area was subdivided in the 1980's creating the present road and subdivision pattern. The majority of lots in the area are the same size and shape as those comprising the subject site.

Advertising and council's decision

6 The application was advertised to adjoining landowners and no submissions were received.

7 By Notice of Determination dated 13 June 2005 the council refused the development application for reasons involving the unsatisfactory nature of the objection under SEPP 1; the creation of an adverse precedent in relation to scheduled lands; and aspects of solar access.

8 A review under s 82A of the Environmental Planning and Assessment Act 1979 (" the EPA Act") was similarly unsuccessful.

Planning controls
State Environmental Planning Policy (Sydney Region Growth Centres)

9 The site is subject to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 ("the Growth Centres Policy" and "the policy"), despite the fact that the development application was lodged in February 2004 prior to its gazettal in July 2006. The policy includes the site in the Environment Conservation Zone that has the following objectives:

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 108
Decision Date: 8 March 2007

CaseChat Overview and Summary

The case of Hill v Blacktown City Council involves the plaintiff, Hill, who sought approval for a development application for a single storey detached dwelling at 93 Barton Street, Marsden Park. The defendant, Blacktown City Council, initially refused the application, leading Hill to appeal this decision. The appeal was heard by the Land and Environment Court of New South Wales, where the primary judge reconsidered the merits of the application. The court was tasked with determining whether the council's decision to refuse the development application was justified and if the proposed dwelling complied with relevant planning laws and regulations.

The primary legal issues before the court included whether the proposed development complied with the local planning scheme and whether the council's refusal was based on lawful and rational grounds. The court also had to consider the merits of the development application itself, including the impact on the local environment and community, and whether any conditions could be imposed to mitigate any adverse effects. Additionally, the court examined whether the council's decision-making process was procedurally fair and whether all relevant considerations were taken into account.

In reaching its decision, the court found that the council's refusal of the development application was not supported by the evidence and that the proposed development was in accordance with the local planning scheme. The court held that the council had not properly assessed the merits of the application and had failed to consider all relevant factors. The court further determined that the proposed dwelling would not have an adverse impact on the local environment or community if certain conditions were imposed. Consequently, the court upheld the appeal and granted development consent for the proposed dwelling, subject to specific conditions outlined in the judgment.

Orders

Orders of the court

1. The appeal is upheld. 2. Development Application No. 04-424, for the construction of a single storey detached dwelling at 93 Barton Street, Marsden Park, is determined by the granting of development consent subject to the conditions in Annexure `A' hereto. 3. Exhibit H is retained.

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.

CITATION:	Hill v Blacktown City Council [2007] NSWLEC 108
PARTIES:	APPLICANT William Hill RESPONDENT Blacktown City Council
FILE NUMBER(S):	10838 of 2006
CORAM:	Bly C
KEY ISSUES:	Development Application :- Dwelling house, minimum lot size, growth centres policy, environmental conservation, aims and objectives, concurrence
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Blacktown Local Environmental Plan 1988 Land and Environment Court Act 1979
CASES CITED:	Winten Property Group Pty Ltd v North Sydney Council [2001] NSWLEC 4
DATES OF HEARING:	19/12/2006
DATE OF JUDGMENT:	8 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr A Bisits, solicitor RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor