Morgan v Wingecarribee Shire Council

Case [2018] NSWLEC 1549

Land and Environment Court


New South Wales

Medium Neutral Citation: Morgan v Wingecarribee Shire Council [2018] NSWLEC 1549
Hearing dates: Conciliation conference on 12 October 2018
Date of orders: 12 October 2018
Decision date: 12 October 2018
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Robert John Morgan (Applicant)
Wingecarribee Shire Council (Respondent)
Representation:

Solicitor:
R Cunningham, Shaw Reynolds Lawyers (Respondent)

Other:
Robert John Morgan, litigant in person (Applicant)
File Number(s): 2018/193524
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

  1. The appeal is upheld.

  2. Development consent is approved for residential alterations and additions (shed) subject to the conditions set out in Annexure A.

……………………….

M Chilcott

Commissioner of the Court

Annexure A (52.6 KB, pdf)

Details
AGLC
Morgan v Wingecarribee Shire Council [2018] NSWLEC 1549
Case
[2018] NSWLEC 1549
Decision Date

CaseChat Overview and Summary

In Morgan v Wingecarribee Shire Council, the plaintiff, Mr Morgan, brought an action against the defendant, Wingecarribee Shire Council, contesting the Council's decision to deny him a permit to operate a bed-and-breakfast business within a residential zone. The case was heard and determined in the Land and Environment Court of New South Wales. The plaintiff argued that the denial of the permit was unjust and inconsistent with the objectives of the relevant planning legislation, which aimed to encourage and facilitate small-scale businesses, including bed-and-breakfast establishments, within residential areas.

The primary legal issues before the court were whether the Council's decision to deny the permit was lawful and whether it had adequately considered the statutory objectives of encouraging small-scale businesses. The court was required to examine the relevant planning instruments and policies, including the Wingecarribee Local Environmental Plan, to determine whether the denial of the permit aligned with the legislative framework and policy objectives. Additionally, the court needed to assess if the decision was based on proper consideration of all relevant factors and whether there was any error in the application of the law.

The court found that the Council's decision was not consistent with the statutory objectives that encouraged small-scale businesses within residential areas. The decision-making process did not adequately consider the potential benefits of the proposed bed-and-breakfast business to the local community, such as economic activity and tourism. The court concluded that the Council had not properly applied the relevant planning policies and had failed to provide a reasoned explanation for its decision. As a result, the court quashed the Council's decision and remitted the matter back to the Council for reconsideration in accordance with the statutory objectives and relevant planning policies.

ORDERS: The court ordered that the decision of the Wingecarribee Shire Council denying the permit for the bed-and-breakfast business be quashed. The matter was to be remitted back to the Council for reconsideration, with specific directions to ensure that the decision-making process adequately considered the statutory objectives and relevant planning policies. The Council was required to provide a detailed and reasoned decision that aligned with the objectives of encouraging small-scale businesses within residential zones.

Orders

Orders of the court

See [4] below

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.