Neate v Shellharbour City Council (No 2) - [2007] NSWLEC 654

Land and Environment Court

of New South Wales

CITATION: Neate v Shellharbour City Council (No 2) [2007] NSWLEC 654

PARTIES:
Applicant:
David Neate
Respondent:
Shellharbour City Council

FILE NUMBER(S): 10337 of 2006

CORAM: Roseth SC

KEY ISSUES: Development Application - Development Control Plan - Question of Law :- error of law; DCP as fundamental element

LEGISLATION CITED: Zhang v Canterbury City Council (2001) 51NSWLR 586
Ai v Newcastle City Council (2003) 126 LGERA 194
Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195
Stadurn v Blacktown City Counsil (2004) 134 LGERA 157

DATES OF HEARING: 28/09/2007

DATE OF JUDGMENT:
9 October 2007

LEGAL REPRESENTATIVES: Applicant:
Mr C McEwen, SC and Mr M Staunton, barrister
Respondent:
Mr A Pickles, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

9 October 2007

10337 of 2006 Neate v Shellharbour City Council
JUDGMENT

1 Senior Commissioner: This is a Class 1 appeal, which I heard on 27 March 2007 (the first merit hearing) and determined on 1 May 2007 by granting consent. Shellharbour City Council (the council) successfully appealed my decision under s56A of the Land and Environment Court Act 1979. Pain J delivered a judgment on 24 August 2007, having found two errors of law in my decision. In a further judgment on 28 August 2007 her Honour remitted the matter to me for hearing in accordance with her judgment of 24 August 2007.

2 Paragraph 12 of her Honour’s judgment of 28 August 2007 sums up her findings.

I have held that the Senior Commissioner has made two errors of law. The errors concern the application of instruments under which the risk of flood impact is assessed. The errors I have found include applying the wrong test to the issue of assessment of flooding risk. That issue is a significant issue in the proceedings and a matter about which the Senior Commissioner had to form a view on the merits of the case in order to carry out his task. I held that the application of his own subjective test was not legally correct. While that is an expression of his own view about the approach to the assessment of risk that is part of the legal error I have found in the s56A appeal.

3 The above paragraph, when read together with her Honour’s judgment of 24 August 2007, suggests that one error was to consider the council’s Flood Risk Management Development Control Plan and the (then) Department of Infrastructure, Planning and Natural Resources document Floodplain Development Manual as alternative controls that may be applied to the assessment of development applications. The second error was the failure to make the DCP the fundamental element in the assessment of the application.

Relevant planning instruments and policies

4 The application was lodged under the then State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (SEPP 5). SEPP 5 applies to the application by virtue of a savings clause…

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 Neate v Shellharbour City Council (No 2) 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: [2007] NSWLEC 654
Decision Date: 9 October 2007

CaseChat Overview and Summary

The case of Neate v Shellharbour City Council (No 2) involved the applicant, Neate, who sought approval for a development application to demolish existing buildings and construct housing for older people and people with a disability. The proposed development was located at 118-120 Koona Street, Albion Park Rail, and was to be built on lots 2 DP 213438 and 3 DP 786602. The case was heard in the Land and Environment Court of New South Wales. The primary dispute centred around the merits of the development application and whether it should be approved or rejected by the Shellharbour City Council.

The legal issues that the court was required to decide included whether the proposed development was in accordance with the applicable planning schemes and whether it complied with the requirements of relevant policies and guidelines. The court also needed to consider the impact of the development on the surrounding environment and community, and whether any negative impacts could be mitigated. The court had to weigh the benefits of the proposed development, including the provision of much-needed housing for older people and people with a disability, against any potential harm to the environment and community.

The court found that the proposed development was in accordance with the applicable planning schemes and complied with the relevant policies and guidelines. The court also found that the potential negative impacts of the development could be mitigated through the implementation of appropriate conditions. The court emphasised the importance of the proposed development in providing much-needed housing for older people and people with a disability, and found that the benefits of the development outweighed any potential harm to the environment and community. As a result, the court upheld the appeal and granted consent for the development application subject to the conditions in Annexure A. The exhibits were also returned to the parties.

Orders

Orders of the court

1. The appeal is upheld.

2. Development application to demolish the existing buildings and construct housing for older people and people with a disability containing 49 dwellings on lot 2 DP 213438 and lot 3 DP 786602, known as 118-120 Koona Street, Albion Park Rail is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned.

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.

CITATION:	Neate v Shellharbour City Council (No 2) [2007] NSWLEC 654
PARTIES:	Applicant: David Neate Respondent: Shellharbour City Council
FILE NUMBER(S):	10337 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Control Plan - Question of Law :- error of law; DCP as fundamental element
LEGISLATION CITED:	Zhang v Canterbury City Council (2001) 51NSWLR 586 Ai v Newcastle City Council (2003) 126 LGERA 194 Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195 Stadurn v Blacktown City Counsil (2004) 134 LGERA 157
DATES OF HEARING:	28/09/2007
DATE OF JUDGMENT:	9 October 2007
LEGAL REPRESENTATIVES:	Applicant: Mr C McEwen, SC and Mr M Staunton, barrister Respondent: Mr A Pickles, barrister