Hoskins v Waverley Council - [1999] NSWLEC 236

Land and Environment Court

of New South Wales

CITATION:

Hoskins v Waverley Council [1999] NSWLEC 236

PARTIES

APPLICANT:
W Hoskins

RESPONDENT:
Waverley Council

NUMBER:

10951 of 1998

CORAM:

Lloyd J

KEY ISSUES:

Section 56A Appeal :- consideration of draft LEP and DCP - no weight attributed - no error of law

LEGISLATION CITED:

DATES OF HEARING:

09/10/1999

DATE OF JUDGMENT DELIVERY:

10/20/1999

LEGAL REPRESENTATIVES:

APPLICANT:
W R Davison SC
AND
J J Webster (Barrister)
SOLICITORS:
Paul Brown & Co
RESPONDENT:
S B Austin QC
AND
G B Newport (Barrister)
SOLICITORS:
M E McMahon & Associates

JUDGMENT:

Contents

Paragraph

Ground 1 4

Ground 2 16

Conclusion 20

_______________IN THE LAND AND Matter No: 10951/98

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 20/10/99

Hoskins

Applicant

Waverley Council

Respondent

JUDGMENT

HIS HONOUR:

1. This is an appeal by the respondent, Waverley Council (“the Council”) under s 56A of the Land & Environment Court Act 1979 against a decision of a Commissioner on an appeal against the refusal by the Council to grant development consent for a residential flat building. The Commissioner upheld the appeal under s 97 of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”) and granted consent to the development application subject to thirty four conditions. An appeal against the Commissioner’s decision may only be made on a question of law.

2. The Council initially raised five grounds of appeal. On the hearing of the appeal, however, the Council relied only upon the following two grounds:

(1) The Commissioner erred in law in failing to give any weight to Draft Waverley Local Environmental Plan No 14 (“DWLEP 14”) as provided for by s 79C(1)(a)(ii) of the EP&A Act.
(2) The Commissioner erred in law in failing to apply Development Control Plan No 24 (“DCP 24”) as provided for by s 79C(1)(a)(iii) of the EP&A Act.

3. The relevant local environmental plan which applied to the land at the time of the hearing before the Commissioner was Waverley Local Environmental Plan 1966 , under which it was within zone No 2(c1) Residential - Medium & High Density. Development for the purpose of residential flat buildings was permissible with development consent. The Commissioner noted in his decision that DWLEP 14 was in the course of preparation and it aimed to rezone the subject land to Residential 2(a), in which zone residential flat buildings are prohibited. The Commissioner also noted in his decision that DCP 24 applied to the subject land.

Ground (1)

4. After noting that the proposed development was permissible in the 2(c1) zone, the Commissioner stated (at p 11 of the judgment):

Many of the witnesses of the Council sought to apply the standards of DWLEP 14 and the requirements of DCP 24. Against these standards and requirements the proposed development would fail the numerical requirements. The Court is required, in a matter such as this, to balance the matters for consideration under s 79C of the Environmental Planning & Assessment Act 1979. I…

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: [1999] NSWLEC 236
Decision Date: 10/20/1999

CaseChat Overview and Summary

The case of Hoskins v Waverley Council, heard in the Land and Environment Court of New South Wales, involves an appeal by the respondent, Waverley Council, against a decision of a Commissioner which upheld an appeal against the Council's refusal to grant development consent for a residential flat building. The Commissioner's decision granted consent to the development application, subject to certain conditions. The Council appealed the Commissioner's decision on the grounds that the Commissioner erred in law by failing to give any weight to Draft Waverley Local Environmental Plan No 14 and by failing to apply Development Control Plan No 24.

The court addressed the legal issues by examining whether the Commissioner erred in law by not giving any weight to the Draft Local Environmental Plan and the Development Control Plan. The court found that the Commissioner had carefully considered the place of the Draft Local Environmental Plan among the various matters for consideration and was entitled to decide what weight should be given to it. The Commissioner's decision to give little or no weight to the Development Control Plan was also held to be within his discretion and not an error of law. The court held that the Commissioner's decision was not manifestly unreasonable and dismissed the appeal.

The final orders of the court were to dismiss the appeal and for the respondent/appellant, Waverley Council, to pay the applicant's costs of the appeal. The court found that the Council had not demonstrated any error of law in the Commissioner's decision and therefore the appeal was dismissed.

Orders