Hooper v Port Stephens Council

[2010] NSWCA 368

New South Wales

Court of Appeal

CITATION:	Hooper v Port Stephens Council & Anor [2010] NSWCA 368
HEARING DATE(S):	15 December 2010
JUDGMENT OF:	Tobias JA at 1; Handley AJA at 31; Sackville AJA at 32
EX TEMPORE JUDGMENT DATE:	15 December 2010
DECISION:	Appeal dismissed with costs
CATCHWORDS:	ENVIRONMENT AND PLANNING – development assessment – consent – interpretation – Port Stephens LEP 2000 – definition of “height” – Port Stephens Development Control Plan 2007 – whether requirement that development not to exceed two storeys was mandatory
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Port Stephens Development Control Plan 2007 Port Stephens Local Environmental Plan 2000
CASES CITED:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Anor (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Hooper v Port Stephens Council & Anor (No 2) [2010] NSWLEC 112 Hooper v Port Stephens Council & Anor (No 3) [2010] NSWLEC 178; (2010) 176 LGERA 97 Oshlack v Richmond River Council (1998) 193 CLR 72 Port Stephens Council v Chan Industrial Pty Limited [2005] NSWCA 232; (2005) 141 LGERA 226 Zhang v Canterbury City Council [1999] NSWLEC 209; (1999) 105 LGERA 18 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
PARTIES:	Stephen James Hooper Port Stephens Council Trevlyn Peter Hallett
FILE NUMBER(S):	CA 2010/259074
COUNSEL:	A: In person 1R: M C Fraser 2R: D W Larkin
SOLICITORS:	A: In person 1R: Harris Wheeler Lawyers, Newcastle 2R: Equilaw Solicitors, Muswellbrook
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 2010/40010
LOWER COURT JUDICIAL OFFICER:	Pain J
LOWER COURT DATE OF DECISION:	21 July 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Hooper v Port Stephens Council (No 2) [2010] NSWLEC 112

2010/0259074

TOBIAS JA
HANDLEY AJA
SACKVILLE AJA

Wednesday 15 December 2010

STEPHEN JAMES HOOPER v PORT STEPHENS COUNCIL & ANOR

Judgment

1 TOBIAS JA: On 15 December 2009 the respondent Council granted development consent to the second respondent to erect a dwelling house at premises 25 Gloucester Street, Port Stephens (the consent). The appellant, Mr Hooper, commenced Class 4 proceedings in the Land and Environment Court challenging the validity of the consent. Before the primary judge, Pain J, he raised a large number of grounds of which only two are initially relevant. Those grounds concern the height of the building and the fact that it is, at least in part, a 3 storey building.

2 The land, the subject of the consent, is zoned Residential 2(a) under the Port Stephens Local Environmental Plan 2000 (the LEP). In that zoning, the height of any building is limited to 9 metres. The LEP contains a definition in its dictionary of the term "height" in the following terms:

“Height, in relation to a building, means the maximum height of the building measured vertically from the natural ground level or the finished ground level of the completed building, whichever is the lower."

3 Before the primary judge and this Court,…