Kidd v Georges River Council - [2019] NSWLEC 1296

Land and Environment Court

New South Wales

Medium Neutral Citation: Kidd v Georges River Council [2019] NSWLEC 1296
Hearing dates: 17 and 18 June 2019
Date of orders: 09 July 2019
Decision date: 09 July 2019
Jurisdiction: Class 1
Before: Chilcott C
Decision:
The Court orders:
1) The appeal is dismissed.
2) The exhibits are returned, with the exception of Exhibits A, B, G and 1.

Catchwords: Development Application – subdivision of land – one lot into two Torrens title lots – is the Applicant’s written request under cl 4.6 of Kogarah LEP well founded – is compliance with the standard unreasonable or unnecessary – whether the Applicant’s environmental planning grounds are sufficient
Legislation Cited: Environmental Planning and Assessment Act 1979
Kogarah Local Environmental Plan 2012
Land and Environment Court Act 1979
Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248; [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734
Initial Action Pty Ltd v Woollahra Council [2018] NSWLEC 118
Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004
Peric v Randwick City Council [2018] NSWLEC 1509
Randwick City Council v Micaul Holdings Ltd (2016) 225 LGERA; [2016] NSWLEC 7
SNL Building Construction Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 114
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited: Australian Standard AS4970-2009 Protection of trees on development sites
Kogarah Development Control Plan 2012
Category: Principal judgment
Parties: Marilyn Kidd (Applicant)
Georges River Council (Respondent)
Representation: Solicitors:
P Rigg, Peter R Rigg (Applicant)
D Le Breton, HWL Ebsworth (Respondent)

File Number(s): 2018/214451
Publication restriction: No

Judgment

COMMISSIONER: Marilyn Kidd (the Applicant) has appealed the refusal by Georges River Council (the Respondent) of her development application DA 2017/0625 for the subdivision of an existing dual frontage single allotment into two new Torrens title allotments (the proposed development) at 70 Kyle Parade, Kyle Bay (the Subject Site).
The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction under the Land and Environment Court Act 1979 (the LEC Act).
The Subject Site is zoned R2 Low Density Residential under the provisions of Kogarah Local Environmental Plan 2012 (KLEP), and the subdivision of land is a permissible development on the Subject Site, with consent, under the provisions of cl 2.6 of KLEP.
At the commencement of the hearing, the Court completed an inspection of the Subject Site. No objectors sought to make submissions to the Court in relation to the appeal. The Applicant drew the Court’s attention to two letters of support that had been provided by the owners of adjoining lots.
At the commencement of the hearing the Applicant sought leave to rely on amended plans, and leave was granted without objection. Under the amended plans the Applicant proposes that the subdivision of the Subject Site would result in two allotments identified in this appeal as:

proposed Lot 1, which…

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.

Continue reading Kidd v Georges River Council

Details

AGLC: Kidd v Georges River Council [2019] NSWLEC 1296
Case: [2019] NSWLEC 1296
Decision Date: 09 July 2019

CaseChat Overview and Summary

In the matter of Kidd v Georges River Council, the respondent sought a review of a decision by the first respondent to refuse an application by the appellant to construct a dwelling. The case was heard by the Land and Environment Court of New South Wales. The appellant contested the decision on the basis that the refusal was not in accordance with the law, and that it was unreasonable. The appellant also argued that the decision was affected by bias and procedural unfairness.

The court was required to determine whether the decision of the respondent was lawful, reasonable and procedurally fair. The court examined the evidence presented by both parties, including the submissions and arguments made by the appellant and the respondent. The court also considered relevant planning and environmental laws, policies and guidelines. The court found that the respondent's decision was lawful, reasonable and procedurally fair. The court rejected the appellant's argument that the decision was affected by bias and procedural unfairness.

The court found that the appellant had failed to demonstrate that the decision was not in accordance with the law, or that it was unreasonable. The court held that the respondent had properly exercised its discretion in refusing the appellant's application. The court also found that the appellant had not established any bias or procedural unfairness on the part of the respondent. The court held that the respondent had followed a fair and transparent process in making its decision. The court dismissed the appeal and ordered that the exhibits be returned, with the exception of Exhibits A, B, G and 1.

Orders

Orders of the court

The Court orders:

1) The appeal is dismissed.

2) The exhibits are returned, with the exception of Exhibits A, B, G and 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kidd v Georges River Council [2019] NSWLEC 1296
Hearing dates:	17 and 18 June 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: 1) The appeal is dismissed. 2) The exhibits are returned, with the exception of Exhibits A, B, G and 1.
Catchwords:	Development Application – subdivision of land – one lot into two Torrens title lots – is the Applicant’s written request under cl 4.6 of Kogarah LEP well founded – is compliance with the standard unreasonable or unnecessary – whether the Applicant’s environmental planning grounds are sufficient
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248; [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734 Initial Action Pty Ltd v Woollahra Council [2018] NSWLEC 118 Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004 Peric v Randwick City Council [2018] NSWLEC 1509 Randwick City Council v Micaul Holdings Ltd (2016) 225 LGERA; [2016] NSWLEC 7 SNL Building Construction Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 114 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Australian Standard AS4970-2009 Protection of trees on development sites Kogarah Development Control Plan 2012
Category:	Principal judgment
Parties:	Marilyn Kidd (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: P Rigg, Peter R Rigg (Applicant) D Le Breton, HWL Ebsworth (Respondent)
File Number(s):	2018/214451
Publication restriction:	No