Maxwell v Hornsby Council - [2002] NSWLEC 92

Reported Decision: (2002) 120 LGERA 186

Land and Environment Court

of New South Wales

CITATION: Maxwell & Anor v Hornsby Council [2002] NSWLEC 92

PARTIES:
APPLICANT
Simon Maxwell and Pat Pedulla
RESPONDENT
Hornsby Council

FILE NUMBER(S): 10201 of 2002

CORAM: Pain J

KEY ISSUES: Designated Development :- whether designated development - test for designated development - changes to statutory scheme - whether purpose of development is relevant

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 5, s 77A, s 78A, s 158
Environmental Planning and Assessment Regulation 1980 cl 70(1), Sch 3
Environmental Planning and Assessment Regulation 1994 cl 49(1), Sch 3
Environmental Planning and Assessment Regulation 2000 cl 4(1), Sch 3
State Environmental Planning Policy No. 5

CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Botany Bay Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294;
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157;
Helman v Byron Shire Council (1995) 87 LGERA 349;
Hollis v Shellharbour City Council [2002] NSWLEC 83;
Lyne v Moree Plains Shire Council (1999) 110 LGERA 120 ;
Malcolm on behalf of Merrylands Residents Group v Newcastle City Council (1991) 73 LGRA 356;
Moore & Anor v Yarrowlumla Shire Council [2002] NSWLEC 62;
Penrith City Council v Waste Management Authority (1990) 71 LGRA 376;
Timbarra Protection Coalition v Ross Mining NL & Ors (1999) 102 LGERA 52

DATES OF HEARING: 27/05/2002

DATE OF JUDGMENT:
07/03/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen (Barrister)
SOLICITORS
Coudert Brothers
RESPONDENT
Mr B Preston SC
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No: 10201 of 2002
ENVIRONMENT COURT Coram: Pain J
OF NEW SOUTH WALES Decision date: 3 July 2002.

SIMON MAXWELL and

PAT PEDULLA

Applicants

HORNSBY COUNCIL

Respondent

JUDGMENT

1. The Applicants commenced Class 1 proceedings against the refusal of a development application by Hornsby Council (the Council). The Council applied for the determination of a preliminary question of law as follows:

Whether the proposed sewage treatment plant, for which the applicant has sought development consent, is designated development pursuant to Schedule 3 of the Environmental Planning and Assessment Regulation 2000.

2. Designated development is defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as having the meaning given to it in s 77A of that Act. Section 77A provides:

Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.

3. Clause 4(1) of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) provides:

Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.

4. Part 1 of Sch 3 contains a list of categories of designated development.

5. It…

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.

Keep reading for free

Create a free CaseChat account to read Maxwell v Hornsby Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWLEC 92
Decision Date: 07/03/2002

CaseChat Overview and Summary

In Maxwell v Hornsby Council, the applicants challenged the council's refusal to grant a development application for a proposed sewage treatment plant. The court was required to determine whether the proposed development constituted designated development under the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000. The central issue was whether the purpose of the development should be considered when determining whether it was designated development, or if the mere fact that it fell within the statutory description in the regulation was sufficient. The court considered submissions from both parties, with the Council arguing that the purpose of the development should not be considered, while the applicants argued for a characterisation test to determine the dominant purpose. The court ultimately found in favour of the Council, holding that the current legislative scheme did not require consideration of the purpose of the development, and that the mere fact that the development fell within the statutory description in the regulation was sufficient to classify it as designated development. This decision distinguished previous cases that had applied a characterisation test, as the court found those cases were based on a legislative context that no longer existed. The court emphasised the importance of environmental protection and public participation in the EP&A Act, and held that activities considered to pose a greater threat to the environment should be properly considered through a process of environmental impact assessment.

Orders