Kerford Developments Pty Ltd v Albury Council - [2012] NSWLEC 1020

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Kerford Developments Pty Ltd v Albury Council [2012] NSWLEC 1020
Hearing dates: 14, 15 November 2011
Decision date: 06 February 2012
Jurisdiction: Class 1
Before: Pearson C
Decision:
Appeal 10622 of 2011:
1. Appeal dismissed
2. Development application DA 10.2011.390925.1 for a 15 lot residential subdivision is refused.
3. Exhibits are returned except for exhibits B, G and 2.
Appeal 10817 of 2011:
1. Appeal dismissed.
2. Application to modify development consent 10.2006.27318.5 granted on 3 March 2008 (as modified) is refused.
3. Exhibits are returned except for exhibits 4 and F.

Catchwords: Development application - residential subdivision - impact on threatened species - biodiversity certification
Development modification - whether substantially the same development - condition for dedication of land
Legislation Cited: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010
Albury Local Environmental Plan 2010
Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Bowen v Willoughby City Council [2000] NSWLEC 69
Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52
Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121
Kerford Developments Pty Ltd v Albury Council [2011] NSWLEC 154
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695
Mason Architects v North Sydney Council [1999] NSWLEC 176
Moss v Kiama Council (2003) 127 LGERA 83
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Rutland v Shoalhaven Shire Council (1997) 94 LGERA 370
Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60
Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351
Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992)
Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104
Yu v Ku-ring-gai Council [2004] NSWLEC 569
Category: Principal judgment
Parties: Kerford Developments Pty Ltd (Applicant)
Albury Council (Respondent)
Representation: Mr A Bradbury, Williams Love & Nicol (Applicant)
Mr M Rogers, Kell Moore (Respondent)
Mr I Hemmings (Applicant)
Mr M Seymour (Respondent)

File Number(s): 10622 of 2011 10817 of 2011

Judgment

There are two appeals before the Court from determinations made by the respondent Council in relation to land owned by Kerford Developments Pty Ltd (Kerford) on the southeastern corner of Thurgoona Drive and Kerr Road, Thurgoona (the site).

Appeal 10622 of 2011 is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of consent for development application DA 10.2011.390925.1 made on 12 April 2011 seeking approval for a 15 lot residential subdivision of part of the site (the DA appeal).

Appeal 10817 of 2011 is an appeal under s97AA of the Act against the refusal…

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: [2012] NSWLEC 1020
Decision Date: 06 February 2012

CaseChat Overview and Summary

Kerford Developments Pty Ltd sought judicial review of the Albury City Council's decisions to refuse a development application for a residential subdivision and to refuse an application to modify an existing development consent. The applicant sought the review in the Land and Environment Court of New South Wales. The legal issues before the court included whether the council had correctly exercised its discretion in refusing the development application and the modification of the existing development consent, and whether the decisions were based on unreasonable or irrelevant considerations.

The court found that the council had correctly exercised its discretion in refusing both the development application and the application to modify the development consent. The court determined that the council's decisions were based on relevant considerations and did not involve any errors of law. The applicant's arguments that the council had failed to consider relevant factors or had given undue weight to irrelevant factors were rejected by the court. The court held that the council's decisions were reasonable and in accordance with the relevant planning legislation and policies.

The court dismissed both appeals and confirmed the council's decisions to refuse the development application and the application to modify the development consent. The exhibits were returned, with certain exceptions. The applicant was ordered to pay the council's costs of the appeals.

Orders

Orders of the court

Appeal 10622 of 2011:

1. Appeal dismissed

2. Development application DA 10.2011.390925.1 for a 15 lot residential subdivision is refused.

3. Exhibits are returned except for exhibits B, G and 2.

Appeal 10817 of 2011:

1. Appeal dismissed.

2. Application to modify development consent 10.2006.27318.5 granted on 3 March 2008 (as modified) is refused.

3. Exhibits are returned except for exhibits 4 and F.

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:	Kerford Developments Pty Ltd v Albury Council [2012] NSWLEC 1020
Hearing dates:	14, 15 November 2011
Decision date:	06 February 2012
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal 10622 of 2011: 1. Appeal dismissed 2. Development application DA 10.2011.390925.1 for a 15 lot residential subdivision is refused. 3. Exhibits are returned except for exhibits B, G and 2. Appeal 10817 of 2011: 1. Appeal dismissed. 2. Application to modify development consent 10.2006.27318.5 granted on 3 March 2008 (as modified) is refused. 3. Exhibits are returned except for exhibits 4 and F.
Catchwords:	Development application - residential subdivision - impact on threatened species - biodiversity certification Development modification - whether substantially the same development - condition for dedication of land
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010 Albury Local Environmental Plan 2010
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Bowen v Willoughby City Council [2000] NSWLEC 69 Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52 Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121 Kerford Developments Pty Ltd v Albury Council [2011] NSWLEC 154 Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 Mason Architects v North Sydney Council [1999] NSWLEC 176 Moss v Kiama Council (2003) 127 LGERA 83 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Rutland v Shoalhaven Shire Council (1997) 94 LGERA 370 Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351 Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992) Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104 Yu v Ku-ring-gai Council [2004] NSWLEC 569
Category:	Principal judgment
Parties:	Kerford Developments Pty Ltd (Applicant) Albury Council (Respondent)
Representation:	Mr A Bradbury, Williams Love & Nicol (Applicant) Mr M Rogers, Kell Moore (Respondent) Mr I Hemmings (Applicant) Mr M Seymour (Respondent)
File Number(s):	10622 of 2011 10817 of 2011