Irving v Goulburn Mulwaree Council - [2008] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION: Irving v Goulburn Mulwaree Council [2008] NSWLEC 142

PARTIES:
APPLICANT
Graham Irving
RESPONDENT
Goulburn Mulwaree Council

FILE NUMBER(S): 10399 of 2007

CORAM: Lloyd J

KEY ISSUES: Appeal :- under s 56A of the Land and Environment Court Act 1979 - development application - subdivision and construction of a retail and commercial building - alleged misdirection in relation to development control plan and s 79C of the Environmental Planning and Assessment Act 1979 - determinative weight - no error of law

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C
Goulburn Local Environmental Plan 1990
Goulburn Mulwaree Development Control Plan No. 15 - Marys Mount Road

CASES CITED: Ai v Council of the City of Newcastle (2003) 126 LGERA 194
Attorney General (NSW) v X (2000) 49 NSWLR 653
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274
Coles v Woollahra Municipal Council (1986) 59 LGRA 133
Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233
Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Misfud v Campbell (1991) 21 NSWLR 725
Parramatta City Council v Hale (1982) 47 LGRA 319
Segal v Waverley Council (2005) 64 NSWLR 177
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373

DATES OF HEARING: 17 March 2008

DATE OF JUDGMENT:
17 April 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A M Pickles (barrister)
SOLICITORS:
Bourke Love Mccartney Young
RESPONDENT:
Mr J A Ayling SC
SOLICITORS:
Susan Hill & Associates Lawyers Pty Ltd

JUDGMENT:

- 8 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 17 April 2008

LEC No. 10399 of 2007

IRVING v GOULBURN MULWAREE COUNCIL [2008] NSWLEC 142

JUDGMENT

1 HIS HONOUR: The applicant, Mr Graham Irving, made a development application to Goulburn Mulwaree Council for the subdivision of land at No. 38 Gourock Avenue, Goulburn into two allotments and for the construction of a retail and commercial building with car parking on one lot (lot 2). The other lot (lot 1) accommodates a Seventh Day Adventist Church. The council refused the application.

2 The following four issues were raised in the appeal to this Court against the council’s refusal:

i) whether the proposal is appropriately located considering the zone objectives and the requirements in Goulburn Mulwaree Development Control Plan No. 15 – Marys Mount Road (“DCP”);

ii) whether the proposal provides satisfactory vehicular access;

iii) whether the proposal provides a satisfactory streetscape appearance; and

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: [2008] NSWLEC 142
Decision Date: 17 April 2008

CaseChat Overview and Summary

The applicant, Graham Irving, appealed against the refusal of a development application by Goulburn Mulwaree Council to subdivide land at No. 38 Gourock Avenue, Goulburn into two allotments and for the construction of a retail and commercial building with car parking on one lot. The council had refused the application. The commissioner, who heard the appeal, dismissed it and upheld the council's decision. The commissioner found that the proposal failed to comply with the requirements of the Goulburn Mulwaree Development Control Plan No. 15 – Marys Mount Road, which identified specific locations for commercial and community facilities. The commissioner also found that the proposal provided satisfactory vehicular access, streetscape appearance and would not create unsatisfactory amenity impacts. The commissioner concluded that the proposal should be refused because it did not comply with the DCP. The applicant's grounds of appeal were that the commissioner misdirected himself in his consideration of the DCP and s 79C of the Environmental Planning and Assessment Act 1979 and that he incorrectly applied cl 3 of the Goulburn Local Environmental Plan 1990. The court dismissed all grounds of appeal, finding that the commissioner had not erred in law. The court found that the commissioner gave proper consideration to the DCP and s 79C of the Act and that he correctly applied cl 3 of the LEP. The court held that the commissioner was entitled to give determinative weight to the planning strategy in the DCP and that he was not required to consider any other matters. The court concluded that the commissioner's decision did not disclose any error of law and dismissed the appeal with costs.

Orders