Hollis v Shellharbour City Council - [2002] NSWLEC 83

Land and Environment Court

of New South Wales

CITATION: Hollis v Shellharbour City Council [2002] NSWLEC 83

PARTIES:
APPLICANT
Kimberly Hollis
FIRST RESPONDENT
Shellharbour City Council
SECOND RESPONDENT
Miltonbrook Managements Pty Ltd

FILE NUMBER(S): 40190 of 2001

CORAM: Pain J

KEY ISSUES:
Administrative Law :- jurisdictional error of fact - whether invalid development consent could be modified
Designated Development :- characterisation of development - whether designated development - when to assess whether designated development
Judicial Review :- jurisdictional error of fact - validity of development consent - whether invalid development consent could be modified
Words and Phrases :- meaning of natural waterbody - meaning of maximum aggregate surface area - meaning of artificial waterbody

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5, s 77A, s 78A, s 79, s 81A(3), s 96(1A), s 97, s 98, s 102, s 123
Environmental Planning and Assessment Regulation 1994 cl 53C, Sch 3 Pt 1, Sch 3 Pt 3
Migration Act 1958 (Cth)
Rivers and Foreshores Improvement Act 1948

CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Calvin v Carr [1980] AC 574;
Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294;
CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGERA 270;
Craig v South Australia (1995) 184 CLR 163;
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135;
Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649;
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGERA 306;
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157;
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242;
Hawkesbury County Council & Anor v Sammut [2002] NSWCA 18;
Helman v Byron Shire Council (1995) 87 LGERA 349;
Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76;
Lyne v Moree Plains Shire Council (1999) 110 LGERA 120;
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11;
MLC Properties v Camden Council (1997) 96 LGERA 53;
Moore & Anor v Yarrowlumla Shire Council [2002] NSWLEC 62;
Penrith City Council v Waste Management Authority & Anor (1990) 71 LGRA 376;
Save Blue Lagoon Action Group Incorporated v Kelvest Pty Ltd and Wyong Shire Council (1993) 81 LGERA 144;
Scurr v Brisbane City Council (1973) 133 CLR 242;
Smith v East Elloe Rural District Council [1956] AC 73;
Swadling v Sutherland Shire Council (1994) 82 LGERA 431;
Timbarra Protection Coalition v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 102 LGERA 52;
Wolgan Action Group Inc v Lithgow City Council (2001) 116 LGERA 378

DATES OF HEARING: 19, 20, 21 March 2002

DATE OF JUDGMENT:
05/30/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Robertson SC
SOLICITORS
Woolf Associates
FIRST RESPONDENT
Mr C McEwen (Barrister)
SOLICITORS
Peedoms

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: [2002] NSWLEC 83
Decision Date: 05/30/2002

CaseChat Overview and Summary

The case of Hollis v Shellharbour City Council involved a challenge to the grant of development consent by Shellharbour City Council to Miltonbrook Managements Pty Ltd for a subdivision and related works for Tullimbah Village near Albion Park. The applicant, Kimberly Hollis, sought declarations that the decision to grant development consent was invalid as the development was designated development and no environmental impact statement was prepared. The applicant argued that the proposed development included substantial stormwater and water management works, including the construction of several artificial waterbodies, which were not merely incidental to the subdivision. The court found that the development was indeed designated development as it involved substantial stormwater and water management works, which included several artificial waterbodies that were not merely subservient to the purpose of subdivision. The court further found that the development consent issued by Shellharbour City Council on 21 June 2001 and the modified development consent granted on 26 February 2002 were invalid as the original consent was based on a jurisdictional error of fact. The court declared that the development consent and the modified development consent were invalid and that the second respondent was restrained from carrying out or authorising the development pursuant to the development consent or the modified development consent. The court also declared that the second respondent had not made an application for development consent within the meaning of the Environmental Planning and Assessment Act 1979 and that Shellharbour City Council had no power to grant the development consent or the modified development consent. The question of costs was reserved.

Orders