Lensing v Snowy Valley Council - [2022] NSWLEC 1486

Land and Environment Court

New South Wales

Medium Neutral Citation: Lensing v Snowy Valley Council [2022] NSWLEC 1486
Hearing dates: 4 and 5 August 2022
Date of orders: 13 September 2022
Decision date: 13 September 2022
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development consent for Development Application 2020/0228 seeking construction of a two-storey dwelling and shed on Lot 12 DP 125902, also known as 12 Bombowlee Avenue, Bombowlee, is refused.
(3) All exhibits are returned.

Catchwords:
DEVELOPMENT APPLICATION – dwelling house construction - flooding impact – proximity to riparian land with biodiversity values mapped – reliance on evacuation plan

Legislation Cited:
Biodiversity Conservation Act 2016
Biodiversity Conservation Regulation 2017, cl 7.3
Environmental Planning and Assessment Act 1979, ss 4.14, 4.158.7
Environmental Planning and Assessment Regulation 2000, cll 49, 55
Land and Environment Court Act 1979, s 34AA
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021
Standard Instrument (Local Environmental Plans) Order 2006, cl 8
Tumut Local Environmental Plan 2012, cll 2.3, 4.2B, 5.10, 5.21, 6.1, 6.4, 6.5

Cases Cited:
CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97
Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

Texts Cited:
Australian Institute for Disaster Resilience, Australian Disaster Resilience Handbook 7 - Managing the floodplain: A Guide to Best Practice in Flood Risk Management in Australia (2017)
Department of Infrastructure, Planning and Natural Resources, NSW Flood Plain Development Manual (2005)
NSW Government, 2022 NSW Flood Enquiry (2022)
NSW State Emergency Services, Tumut Shire Local Flood Plan (Volume 1 2013)
Snowy Valley Development Control Plan 2019

Category: Principal judgment
Parties: Chad Lensing (First Applicant)
Elaine Lensing (Second Applicant)
Snowy Valley Council (Respondent)
Representation:
Counsel:
J Reid (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Kell Moore (Applicants)
Marsdens Law Group (Respondent)

File Number(s): 2022/91323
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2020/0228 by the Snowy Valley Council (hereafter the Council) which seeks construction of a two-storey dwelling and a separate shed on Lot 12 DP 125902, also known as 12 Bombowlee Avenue, Bombowlee (the site).
For the reasons explained below, I am not satisfied that the proposed development addresses the relevant jurisdictional and merit assessment requirements for the Court to grant consent to the DA under appeal.

Background

The DA was submitted to Council on 24 July 2020. After internal review, the DA was refused by Council, and the applicant issued a Notice of Determination on 27 April 2021. A request for review of the determination was assessed by Council and also refused on 21 March 2022.
The applicant appealed against the actual refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
Pursuant to s 34AA(1) of the Land and Environment Court Act 1979 (the…

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: [2022] NSWLEC 1486
Decision Date: 13 September 2022

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Lensing appealed against Snowy Valley Council's decision to refuse development consent for a proposed two-storey dwelling and shed on a property located at 12 Bombowlee Avenue, Bombowlee. The applicant sought to construct the dwelling and shed on Lot 12 DP 125902, and contested the council's decision, arguing that it was unreasonable and not in accordance with the law. The council opposed the appeal, asserting that the decision was lawful and based on proper consideration of the relevant planning laws and policies.

The court was required to determine whether the council's decision was unreasonable in the Wednesbury sense, that is, whether it was so unreasonable that no reasonable person could have made it. Additionally, the court had to assess whether the council's decision was made in accordance with the relevant planning laws and policies. The court also considered whether the applicant had demonstrated that the proposed development would not cause significant harm to the environment, and whether the development was consistent with the relevant planning scheme.

The court found that the council's decision was not unreasonable and was in accordance with the relevant planning laws and policies. The court held that the proposed development would cause significant harm to the environment and was not consistent with the relevant planning scheme. The court further found that the applicant had not demonstrated that the proposed development would not cause significant harm to the environment, and that the development was not consistent with the relevant planning scheme. Accordingly, the appeal was dismissed, and development consent for the proposed dwelling and shed was refused.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for Development Application 2020/0228 seeking construction of a two-storey dwelling and shed on Lot 12 DP 125902, also known as 12 Bombowlee Avenue, Bombowlee, is refused.

(3) All 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:	Lensing v Snowy Valley Council [2022] NSWLEC 1486
Hearing dates:	4 and 5 August 2022
Date of orders:	13 September 2022
Decision date:	13 September 2022
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development consent for Development Application 2020/0228 seeking construction of a two-storey dwelling and shed on Lot 12 DP 125902, also known as 12 Bombowlee Avenue, Bombowlee, is refused. (3) All exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION – dwelling house construction - flooding impact – proximity to riparian land with biodiversity values mapped – reliance on evacuation plan
Legislation Cited:	Biodiversity Conservation Act 2016 Biodiversity Conservation Regulation 2017, cl 7.3 Environmental Planning and Assessment Act 1979, ss 4.14, 4.158.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 Tumut Local Environmental Plan 2012, cll 2.3, 4.2B, 5.10, 5.21, 6.1, 6.4, 6.5
Cases Cited:	CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97 Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289
Texts Cited:	Australian Institute for Disaster Resilience, Australian Disaster Resilience Handbook 7 - Managing the floodplain: A Guide to Best Practice in Flood Risk Management in Australia (2017) Department of Infrastructure, Planning and Natural Resources, NSW Flood Plain Development Manual (2005) NSW Government, 2022 NSW Flood Enquiry (2022) NSW State Emergency Services, Tumut Shire Local Flood Plan (Volume 1 2013) Snowy Valley Development Control Plan 2019
Category:	Principal judgment
Parties:	Chad Lensing (First Applicant) Elaine Lensing (Second Applicant) Snowy Valley Council (Respondent)
Representation:	Counsel: J Reid (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Kell Moore (Applicants) Marsdens Law Group (Respondent)
File Number(s):	2022/91323
Publication restriction:	No