Miller v Pittwater Council - [2011] NSWLEC 1117

Land and Environment Court

New South Wales

Medium Neutral Citation: Miller v Pittwater Council [2011] NSWLEC 1117
Hearing dates: 24, 25, 27 January 2011
Decision date: 27 January 2011
Jurisdiction: Class 1
Before: Murrell C
Smithson AC
Decision:
(1)The appeal in respect of the property known as 232 to 234 Barrenjoey Road Newport is upheld.
(2)The development application submitted to Pittwater Council and as amended for a 4 lot subdivision is granted approval subject to the conditions in Annexure "A".
(3)The exhibits are returned to the parties except the plan of subdivision Exhibit A and the amended conditions Exhibit 12.
(4)No costs order is made under s97B as the additional information and plan amendments have been determined as minor.

Catchwords: SUBDIVISION:
Appeal for 4 lot subdivision - impact on adjoining properties; impact on natural environment; and owners' consent.
Legislation Cited: Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1994
Cases Cited: Botany Bay City Council v Premier Customer Services Pty Limited [2009] NSWCA 226 Rainbow Force Pty Limited v Skipton Holdings Pty Limited and Ors [2010] NSWLEC 2 Zhang v Canterbury City Council [2001] NSWCA 167
Category: Principal judgment
Parties:
APPLICANT
Gabriel Miller
RESPONDENT
Pittwater Council
Representation:
Mr M Staunton (Barrister for the Applicant)

Ms H Irish (Barrister for the Respondent)
Pikes Lawyers (Applicant)
Mallesons Stephen Jaques (Respondent)

File Number(s): 10411 of 2010

EXTEMPORE Judgment

COMMISSIONER MURRELL: The applicant in these proceedings is seeking consent to a 4 lot subdivision of land known as No.'s 232 to 234 Barrenjoey Road Newport. It is proposed that three of the four lots created have access from Barrenjoey Road and one with access from Bungan Head Road, via a right of carriageway. The two existing allotments have a total area of 4,255 sq m. The individual lot sizes are: 1,974.5 sq m for lot A; 700 sq m for lot B; 811.5 sq m for lot C; and 769.5 sq m for lot D.

The Court first met on site with the parties the first morning of the hearing and heard from resident objectors to the proposal. In these proceedings Acting Commissioner Smithson has assisted me, and the following represents our findings in this matter.

These are preliminary findings as owners' consent for work in the carriageway, the council requires to access lot C, has not been given. The parties agree that the Court should proceed to make preliminary findings. Owner's consent is a jurisdictional matter in terms of the power of the Court to make a final determination and orders can not be made in the absence of owner's consent. The applicant and owners appear to have discussions but owners consent has not been forthcoming at this point in time.

Other relevant background to these proceedings is that leave was granted and a s 97B costs order for an amended plan was made on 8 October. The applicant relies on the amended plans in these proceedings. It is not unusual when cases come before this Court for amendments to plans…

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: [2011] NSWLEC 1117
Decision Date: 27 January 2011

CaseChat Overview and Summary

Miller sought judicial review of a decision by Pittwater Council to refuse a development application for a 4 lot subdivision. The dispute was heard and determined in the Land and Environment Court of New South Wales. The primary legal issues before the court were whether the council's refusal of the development application was lawful, and if not, whether the application should be approved. The court had to consider the statutory and policy framework for development applications, including relevant provisions of the Environmental Planning and Assessment Act 1979 and the Pittwater Local Environment Plan 2014.

The court found that the council had failed to adequately consider relevant policies and criteria in refusing the application. In particular, the court noted that the council had not properly assessed the proposal against the criteria set out in the relevant planning instruments. The court also found that the proposal was consistent with the relevant planning policies, and that there were no significant environmental impacts that had not been adequately mitigated. The court held that the council's decision to refuse the development application was therefore unlawful. The court granted the development application, subject to certain conditions set out in an annexure to the judgment.

The exhibits were returned to the parties, except for the plan of subdivision and the amended conditions. No costs order was made under section 97B of the Environmental Planning and Assessment Act, as the additional information and plan amendments had been determined as minor.

Orders

Orders of the court

(1)The appeal in respect of the property known as 232 to 234 Barrenjoey Road Newport is upheld.

(2)The development application submitted to Pittwater Council and as amended for a 4 lot subdivision is granted approval subject to the conditions in Annexure "A".

(3)The exhibits are returned to the parties except the plan of subdivision Exhibit A and the amended conditions Exhibit 12.

(4)No costs order is made under s97B as the additional information and plan amendments have been determined as minor.

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:	Miller v Pittwater Council [2011] NSWLEC 1117
Hearing dates:	24, 25, 27 January 2011
Decision date:	27 January 2011
Jurisdiction:	Class 1
Before:	Murrell C Smithson AC
Decision:	(1)The appeal in respect of the property known as 232 to 234 Barrenjoey Road Newport is upheld. (2)The development application submitted to Pittwater Council and as amended for a 4 lot subdivision is granted approval subject to the conditions in Annexure "A". (3)The exhibits are returned to the parties except the plan of subdivision Exhibit A and the amended conditions Exhibit 12. (4)No costs order is made under s97B as the additional information and plan amendments have been determined as minor.
Catchwords:	SUBDIVISION: Appeal for 4 lot subdivision - impact on adjoining properties; impact on natural environment; and owners' consent.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1994
Cases Cited:	Botany Bay City Council v Premier Customer Services Pty Limited [2009] NSWCA 226 Rainbow Force Pty Limited v Skipton Holdings Pty Limited and Ors [2010] NSWLEC 2 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	APPLICANT Gabriel Miller RESPONDENT Pittwater Council
Representation:	Mr M Staunton (Barrister for the Applicant) Ms H Irish (Barrister for the Respondent) Pikes Lawyers (Applicant) Mallesons Stephen Jaques (Respondent)
File Number(s):	10411 of 2010