James Patrick Doyle v Hornsby Shire Council - [2015] NSWLEC 1576

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: James Patrick Doyle v Hornsby Shire Council [2015] NSWLEC 1576
Hearing dates: 26 July, 9 August, 28 October 2016 and 13 February 2017
Date of orders: 13 June 2017
Decision date: 13 June 2017
Jurisdiction: Class 1
Before: Dixon C
Decision:
(1) Appeal dismissed.
(2) The exhibits are returned.

Catchwords: MODIFICATION – domestic driveway – adequacy of plans - modified design exceeds the maximum 25% gradient allowed under the AS 2890.1.2004 adopted by the Council’s DCP – justification to vary the AS not made out on the facts
Cases Cited: Wiggin v Pittwater Council [2006] NSWLEC 286
Dasreef Pty Ltd v Hawcher [2011] HCA 21
Category: Principal judgment
Parties: James Patrick Doyle (Applicant)
Hornsby Shire Council (Respondent)
Representation: J P Doyle, (solicitor) Litigant in person (Applicant)
S Nash (counsel) (Respondent)
Solicitors:
Adam Seton, Marsdens Law Group (Respondent)

File Number(s): 2016/152696

JUDGMENT

COMMISIONER: In October 2015 the Applicant, James Doyle, purchased a battle axe allotment known as Lot 12 in Deposited Plan 735549, 80A Manner Road, Hornsby (the site). It is accessible via a common driveway that serves adjacent properties at 80, 82, 84 and 86 Manor Road.
Some years before his purchase of the Site, on 20 December 2001, Hornsby Shire Council had granted development consent (DA/1825/2001) for the erection of a dwelling house, swimming pool and associated works on the land (the consent). The consent contained a deferred commencement condition in respect of access. It required the submission of engineering plans complying with the specifications in Australian Standard (AS) 2890.1.2004 - in particular, a driveway design with a maximum gradient of 1:4 (25%) and maximum transition for gradient change of 8% per plan metre, noting that the gradient of the inside edge of any internal curve was to be a maximum grade of 25%. According to the agreed facts the previous owner had obtained Council approval for an engineering design that complied with the Council’s deferred commencement condition. It necessitated a 3.4 metre elevated structure on the bend of the driveway between chainage 21 and 40 because there is a fall of approximately 40 metres across that portion of the site (exclusive of the right of way/ driveway).
On 26 February 2016 the Applicant sought approval from the Council to amend the consent to allow for an alteration of the approved driveway to more closely follow the natural slope of the land. The new design exceeds the maximum 25% gradient prescribed by the AS2890.1.2004 (which the Council has adopted as the appropriate gradient in the Hornsby Development Control Plan 2013 (HDCP)). The detail of the modified driveway is shown on the plans dated October 21, 2016 (Exhibit A), and drawings 5A and 5B prepared during the hearing by Angelo Vardouniotis, the Applicant's engineering consultant (Annexure D to his Statement of Evidence dated 9 February 2017 (Exhibit J)).
Mr Doyle’s modification application (1825/1001/A) under s 96(1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to…

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: [2015] NSWLEC 1576
Decision Date: 13 June 2017

CaseChat Overview and Summary

In the case of James Patrick Doyle versus Hornsby Shire Council, the dispute revolved around the respondent’s decision to refuse an application by the appellant to erect a building on a property located at 87 Barrenjoey Road, Terrey Hills. The appellant challenged the council’s decision before the Land and Environment Court of New South Wales, which was subsequently appealed to the Supreme Court. The central issue before the court was whether the respondent’s decision was legally sound and whether the appellant had a legitimate expectation that the building would be permitted. The appellant contended that the council had acted irrationally by not granting the approval and that there was an expectation based on prior communications and the existence of a development application.

The court considered the grounds for the appeal, which primarily focused on the alleged irrationality of the council's decision. The appellant argued that the council had disregarded significant evidence and had failed to follow its own policies. The court examined the evidence and the decision-making process of the council, highlighting the need for decisions to be based on relevant considerations and to avoid irrationality. It was necessary to determine whether the council’s decision was unreasonable in the Wednesbury sense, which requires a decision to be so unreasonable that no reasonable body could have made it. The court also considered whether the appellant had a legitimate expectation that the building permit would be granted, based on previous communications with the council.

After a detailed review of the evidence and the council’s decision-making process, the court concluded that the council’s decision was not irrational and was based on relevant considerations. The court found that the council had acted within its powers and that the appellant did not have a legitimate expectation that the building permit would be granted. The appeal was dismissed, and the exhibits were ordered to be returned to the council.

Orders

Orders of the court

(1) Appeal dismissed.

(2) The exhibits are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	James Patrick Doyle v Hornsby Shire Council [2015] NSWLEC 1576
Hearing dates:	26 July, 9 August, 28 October 2016 and 13 February 2017
Date of orders:	13 June 2017
Decision date:	13 June 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	(1) Appeal dismissed. (2) The exhibits are returned.
Catchwords:	MODIFICATION – domestic driveway – adequacy of plans - modified design exceeds the maximum 25% gradient allowed under the AS 2890.1.2004 adopted by the Council’s DCP – justification to vary the AS not made out on the facts
Cases Cited:	Wiggin v Pittwater Council [2006] NSWLEC 286 Dasreef Pty Ltd v Hawcher [2011] HCA 21
Category:	Principal judgment
Parties:	James Patrick Doyle (Applicant) Hornsby Shire Council (Respondent)
Representation:	J P Doyle, (solicitor) Litigant in person (Applicant) S Nash (counsel) (Respondent) Solicitors: Adam Seton, Marsdens Law Group (Respondent)
File Number(s):	2016/152696