Hooper v Port Stephens Council (No 2) - [2010] NSWLEC 112

Land and Environment Court

of New South Wales

CITATION: Hooper v Port Stephens Council and Anor (No 2) [2010] NSWLEC 112

PARTIES: APPLICANT
Stephen James Hooper
FIRST RESPONDENT
Port Stephens Council
SECOND RESPONDENT
Trevlyn Peter Hallett

FILE NUMBER(S): 40010 of 2010

CORAM: Pain J

KEY ISSUES: JUDICIAL REVIEW :- whether development consent granted by a council in breach of development standard - whether SEPP 1 application to vary development standard necessary for valid development consent - whether requirements of DCP binding for side and front setbacks - whether partly three storey building can be approved under DCP - whether failure to take into account a second objection of the applicant

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C
Port Stephens Development Control Plan 2007
Port Stephens Local Environmental Plan 2000
State Environmental Planning Policy No 1 - Development Standards
Uniform Civil Procedure Rules 2005 r 42.1

CASES CITED: Forsyth v Wilesmith [2008] NSWLEC 259
Hooper v Port Stephens Council and Anor [2010] NSWLEC 107
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Zhang v Canterbury City Council [1999] NSWLEC 209; (1999) 105 LGERA 18

DATES OF HEARING: 24 June 2010
25 June 2010

DATE OF JUDGMENT:
21 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
In person
FIRST RESPONDENT
Mr M Fraser
SOLICITORS
Harris Wheeler
SECOND RESPONDENT
Mr P Larkin
SOLICITORS
Halletts Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 July 2010

40010 of 2010 Hooper v Port Stephens Council and Anor (No 2)
JUDGMENT

1 Her Honour: The Applicant, Mr Hooper, has commenced Class 4 proceedings challenging the grant of development consent for a residential home to the Second Respondent, Mr Hallett, by Port Stephens Council on 15 December 2009. In Hooper v Port Stephens Council and Anor [2010] NSWLEC 107 (Hooper No 1) I held that many of the issues raised in the Amended Points of Claim (APOC), filed 1 June 2010, could not be pursued in these judicial review proceedings. It is necessary to finally determine the remaining issues raised by the APOC. Those I held could be raised are issues 6, 7.6/7.7 and 10.

2 Issue 6 in the APOC raises whether there was a need for a State Environmental Planning Policy No 1 - Development Standards (SEPP 1) application to vary a development standard to be before the Council when it determined to grant development consent. This was argued to be necessary because there was a failure to comply with a relevant development standard, being the height limit of 9m specified in the Port Stephens Local Environmental Plan 2000 (the LEP). Part of issue 7 in the APOC, 7.6/7.7, identifies that there were documents that may not have been before the Council at the time the decision was made to approve development which should have been. Issue 10 in the APOC raises in general terms issues…

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: [2010] NSWLEC 112
Decision Date: 21 July 2010

CaseChat Overview and Summary

The case of Hooper v Port Stephens Council and Anor (No 2) [2010] NSWLEC 112, dealt with a challenge by Stephen James Hooper against the Port Stephens Council's approval of a residential development application by Trevlyn Peter Hallett. The dispute centred on the approval of a residential home that Hooper argued did not comply with certain planning standards and policies. The Land and Environment Court of New South Wales was tasked with determining whether the Council's decision was lawful and if the development consent granted was valid. Key issues included whether the building's height and number of storeys complied with the Port Stephens Local Environmental Plan 2000 and the Port Stephens Development Control Plan 2007, and whether the Council considered all relevant documents and standards when approving the development.

The Court found that the building's height complied with the maximum permissible height specified in the Local Environmental Plan, as the height was correctly measured according to the definition provided in the Plan. Regarding the number of storeys, the Court held that while the Development Control Plan limited buildings to two storeys, the Council was not bound to apply this strictly and could consider variations based on the overall bulk, scale, and streetscape. The Court also ruled that the Council was not required to strictly adhere to the side and front setbacks stipulated in the Development Control Plan, as long as it took the Plan into account and its modifications were reasonable. Moreover, the Court dismissed Hooper's argument that the Council failed to consider his second written objection, finding that there was no evidence to suggest the Council did not take into account all relevant material.

In conclusion, the Court held that the Council's decision to grant development consent was valid as it had considered all relevant matters and standards. The Court dismissed Hooper's summons and reserved costs, indicating that the Council's decision to approve the development application was lawful.

Orders