Moore v Yarrowlumla Shire Council - [2002] NSWLEC 62

Reported Decision: 120 LGERA 109

Land and Environment Court

of New South Wales

CITATION: Moore and Anor v Yarrowlumla Shire Council [2002] NSWLEC 62

PARTIES:
APPLICANTS
Moore and Anor
RESPONDENT
Yarrowlumla Shire Council

FILE NUMBER(S): 11089 of 2001

CORAM: Pearlman J

KEY ISSUES:
Practice and Procedure :- application to strike out - class 1 appeal - whether objectors had right to appeal
Construction and Interpretation :- whether development application for designated development - independent or ancillary use - river toilet block

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 77A, s 97(1), s 98(1)
Environmental Planning and Assessment Regulation 1994 cl 49 sch 3

CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157;
Penrith City Council v Waste Management Authority and Anor (1990) 71 LGRA 376

DATES OF HEARING: 07/03/2002, 08/04/2002

DATE OF JUDGMENT:
05/03/2002

LEGAL REPRESENTATIVES:

APPLICANT
Ms E K Glover (Barrister)
SOLICITORS
Tetlow Jansen & Doyle
RESPONDENT
Mr A A Bradbury (Solicitor)
SOLICITORS
Minter Ellison

JUDGMENT:

IN THE LAND AND 11089 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 3 May 2002

GILBERT MOORE and PHYLLIS FLEMING

Applicants

YARROWLUMLA SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. By notice of motion, the respondent, Yarrowlumla Shire Council, seeks an order striking out these class 1 proceedings.

2. The proceedings have been brought by the applicants, Mr G Moore and Ms P Fleming (“the objectors”), by way of appeal against the determination of the council to grant development consent to J and A Hyles (“the adjoining owners”), who are neighbours of the objectors. That development consent, numbered 1999/DA-012, was granted subject to conditions in relation to land described as lot 61, DP 801234 Parkwood Road, Parish of Weetangera (“the site”). The development to which consent was granted was described in the notice of determination as follows:

Stage 1 Upgrade of Ginninnderra Falls Tourist Facility comprising:

- upgrading of Trails Carpark;

- construction of ridge carpark;

- upgrading of roads in animal enclosure;

- upgrading and relocation of river toilet block; and

- upgrading of entrance drive.

The competing claims

3. The dispute between the parties centres on whether the objectors have a right of appeal in relation to a development consent granted to persons other than them. Put another way, are the objectors, as third parties, invested with a right of appeal to this Court against the determination of the council to which they objected?

4. Section 97(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) confers upon an applicant for development consent a right of appeal to this Court in circumstances where the applicant is dissatisfied with the determination of a consent authority with respect to that applicant’s development application.

5. The objectors were not the applicants for the development consent. Rather, they lodged an objection with the council in respect of it. However, a right of appeal to this Court is also conferred, by s 98(1) of the EP&A Act,…

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: [2002] NSWLEC 62
Decision Date: 05/03/2002

CaseChat Overview and Summary

The applicants, Mr G Moore and Ms P Fleming, appealed against a decision of the respondent, Yarrowlumla Shire Council, to grant development consent to the adjoining owners, J and A Hyles, for the upgrading, extension and modification of a tourist park, including the relocation of a river toilet block. The objectors sought to appeal against the council's decision to grant development consent on the basis that the river toilet block constituted designated development. The council argued that the development consent was not for designated development, as the river toilet block was an ancillary use of the site and not an independent use. The court had to decide whether the objectors had a right of appeal against the council's decision.

The court found that the river toilet block constituted designated development, as it fell within the definition of a sewerage system that temporarily stores sewage, sludge or effluent at a location within 100 metres of a natural waterbody. However, the court also found that the river toilet block was a subordinate or ancillary use of the site, and the dominant purpose for which the site was to be used was that of a tourist park. Therefore, the development for which consent was sought was not designated development, and the right of appeal conferred by s 98(1) of the Environmental Planning and Assessment Act 1979 did not extend to the objectors.

The court held that the class 1 proceedings must be struck out, as the objectors had no right of appeal against the council's decision. The court ordered that the class 1 proceedings be struck out, and that the applicants pay the costs of the respondent. The exhibits were to be returned to the parties.

This case highlights the importance of properly characterising a proposed development, as the right of appeal under the Environmental Planning and Assessment Act 1979 is limited to certain types of development. It also emphasises the limited rights of third parties to appeal against a decision of a consent authority, and the need for them to carefully consider their legal position before initiating proceedings.

Orders