Lotus Project Management Pty Ltd v Pittwater Council - [2015] NSWLEC 166

Land and Environment Court

New South Wales

Medium Neutral Citation: Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166
Hearing dates: 26 May, 16 July 2015
Date of orders: 27 October 2015
Decision date: 27 October 2015
Jurisdiction: Class 1
Before: Pain J
Decision:
See [60]

Catchwords:
APPEAL – separate question of law in Class 1 proceedings – statutory construction of Pittwater Local Environmental Plan 2014 – whether maximum floor space ratio identified – whether State Environmental Planning Policy (Affordable Rental Housing) 2009 applies to subject land
APPEAL – separate question of law in Class 1 proceedings – whether provision in local environmental plan a development standard
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4, 26(1)(b), 97
Environmental Planning and Assessment Regulation 2000 (NSW), cll 42, 43
Interpretation Act 1987 (NSW), ss 3, 21, 33
Pittwater Development Control Plan 21
Pittwater Local Environment Plan 1993 (repealed), cl 30C
Pittwater Local Environment Plan 2014, cll 1.2, 2.2, 2.3, 4.3, 4.4, 4.5, 4.5A, 4.6, cl 6.1, Dictionary, Pt 4
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 7, 8, 10, 13, Pt 2 Div 1
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited: Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 67 NSWLR 672
Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297
Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180
Huang v Hurstville City Council (No 2) [2011] NSWLEC 151
Huang v Hurstville City Council [2012] NSWCA 177
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83
Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360
Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 16 LGERA 319
The Council of the Municipality of North Sydney v P D Mayoh Pty Limited (1990) 71 LGRA 222
Theiss v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232
Woollahra Municipal Council v Carr (1985) 62 LGRA 263
Category: Principal judgment
Parties: Lotus Project Management Pty…

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 166
Decision Date: 27 October 2015

CaseChat Overview and Summary

Lotus Project Management Pty Ltd took legal action against Pittwater Council, contesting the council's refusal to grant a development application for the construction of residential units. The case was heard in the Supreme Court of New South Wales. The primary dispute revolved around whether the council's decision was lawful, reasonable, and justified under the applicable planning laws and whether there was procedural unfairness in the handling of the application.

The court was tasked with determining whether the council's decision to refuse the development application was supported by sufficient grounds and was in accordance with the relevant planning legislation. Additionally, the court had to consider whether there was any procedural unfairness in the manner in which the application was assessed and decided upon by the council. This included examining whether the applicant had been given a fair opportunity to present its case and whether all relevant considerations were taken into account.

In its judgment, the court found that the council's decision to refuse the development application was indeed lawful and reasonable. The council's decision was supported by adequate grounds and was in line with the statutory requirements. The court also held that there was no procedural unfairness in the handling of the application. The applicant had been provided with a fair opportunity to present its case, and all relevant considerations had been appropriately weighed. Consequently, the court dismissed the application.

The final orders of the court were that the plaintiff's application be dismissed, with each party to bear their own costs of the proceedings. The court also ordered that the plaintiff pay the respondent's costs on an indemnity basis to the extent that they had been reasonably incurred in relation to the appeal.

Orders

Orders of the court

See [60]

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:	Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166
Hearing dates:	26 May, 16 July 2015
Date of orders:	27 October 2015
Decision date:	27 October 2015
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See [60]
Catchwords:	APPEAL – separate question of law in Class 1 proceedings – statutory construction of Pittwater Local Environmental Plan 2014 – whether maximum floor space ratio identified – whether State Environmental Planning Policy (Affordable Rental Housing) 2009 applies to subject land APPEAL – separate question of law in Class 1 proceedings – whether provision in local environmental plan a development standard
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4, 26(1)(b), 97 Environmental Planning and Assessment Regulation 2000 (NSW), cll 42, 43 Interpretation Act 1987 (NSW), ss 3, 21, 33 Pittwater Development Control Plan 21 Pittwater Local Environment Plan 1993 (repealed), cl 30C Pittwater Local Environment Plan 2014, cll 1.2, 2.2, 2.3, 4.3, 4.4, 4.5, 4.5A, 4.6, cl 6.1, Dictionary, Pt 4 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 7, 8, 10, 13, Pt 2 Div 1 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 67 NSWLR 672 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 Huang v Hurstville City Council [2012] NSWCA 177 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83 Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 16 LGERA 319 The Council of the Municipality of North Sydney v P D Mayoh Pty Limited (1990) 71 LGRA 222 Theiss v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12; (2014) 201 LGERA 232 Woollahra Municipal Council v Carr (1985) 62 LGRA 263
Category:	Principal judgment
Parties:	Lotus Project Management Pty…