Manly Council v BSDI Pty Limited - [2010] NSWLEC 31

Land and Environment Court

of New South Wales

CITATION: Manly Council v BSDI Pty Limited [2010] NSWLEC 31

PARTIES:
APPELLANT
Manly Council
RESPONDENT
BSDI Pty Limited

FILE NUMBER(S): 10429 of 2008

CORAM: Pepper J

KEY ISSUES: APPEAL :- section 56A appeal from decision of commissioner approving proposed development of a childcare centre - whether commissioner erred by failing to consider relevant provisions of SEPP and LEP - whether commissioner failed to attain requisite mental state as required by SEPP and LEP - whether commissioner failed to provide adequate reasons - whether parties bound by their conduct of the proceedings - appeal dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act 1993
State Environmental Planning Policy (Infrastructure) 2007
Manly Local Environmental Plan 1988

CASES CITED: Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68
BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067
Design Power Assocs Pty Ltd v Willoughby City Council (2005) 148 LGERA 233
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17

DATES OF HEARING: 22 September 2009

DATE OF JUDGMENT:
11 March 2010

LEGAL REPRESENTATIVES:
APPELLANT
Ms S Duggan
SOLICITORS
Pikes Lawyers
RESPONDENT
Mr D Miller
SOLICITORS
Gadens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

11 March 2010

10429 of 2008 Manly Council v BSDI Pty Limited

JUDGMENT

Introduction

1 HER HONOUR: This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 against the decision and orders of a Commissioner of the Land and Environment Court made on 20 March 2009 (BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067).

2 Class 1 proceedings were commenced by the respondent, BSDI Pty Limited (“BSDI”), on 30 April 2008, against the appellant’s, Manly Council’s (“the council”), deemed refusal of its development application for the construction of a two storey childcare centre and associated car parking in Seaforth. The proceedings were heard by the Commissioner, who approved the proposed childcare centre subject to conditions.

3 Subsequently the council formerly refused development consent on 2 July 2008.

Grounds of Appeal

4 The five grounds of appeal listed in the summons were reformulated by the council in its submissions as follows:

(a) failing to take into account relevant consideration, namely, cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007 (“the SEPP”) pursuant to s 79C(a)(i) of the Environmental Planning and Assessment Act 1979 (“the EPAA”), absent any reference to the clause in the judgment (ground 1);

(b) misconstruing cl 101 of the SEPP in that the clause requires the consent authority to be satisfied as to the matters listed in cl 101(2) before a development consent may be granted and failing to give reasons for that satisfaction (ground 2);

(c) failing to take into account relevant consideration, namely, cl 10(3) of the Manly Local Environmental Plan 1988 (“the LEP”)…

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: [2010] NSWLEC 31
Decision Date: 11 March 2010

CaseChat Overview and Summary

Manly Council appeals against the decision of the Commissioner approving BSDI Pty Limited's development application for the construction of a two-storey childcare centre and associated car parking in Seaforth. The Council submits that the Commissioner failed to take into account relevant considerations and misconstrued the State Environmental Planning Policy (Infrastructure) 2007 and the Manly Local Environmental Plan 1988. The Council further submits that the Commissioner failed to provide adequate reasons for her decision. The appeal is dismissed. The Commissioner did not err in law. The Commissioner considered the relevant provisions of the SEPP and LEP, having regard to the manner in which the hearing was conducted by the parties. The Commissioner considered and formed opinions in relation to the relevant provisions of the SEPP and LEP and, having done so, was satisfied that the development should be approved. The Commissioner gave adequate reasons for her decision.

Orders