Peter Campton v Parramatta City Council - [2011] NSWLEC 1360

Land and Environment Court

New South Wales

Medium Neutral Citation: Peter Campton v Parramatta City Council [2011] NSWLEC 1360
Hearing dates: 17-19 August 2011
Decision date: 07 September 2011
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal upheld subject to conditions

Catchwords: Development application: Subdivision, impact on streetscape; impact of driveway; Endangered Ecological Community; Vegetation Management Plan; Tree Protection Plan
Legislation Cited: Environmental Planning & Assessment Act 1979
Environment Protection and Biodiversity Conservation Act 1999
Threatened Species Conservation Act 1995
Parramatta Local Environmental Plan 1996 (Heritage and Conservation)
Conveyancing Act 1919
Parramatta Local Environmental Plan 2001
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Campton v Parramatta City Council [2011] NSWLEC 12
Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99
Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70
Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222
Category: Principal judgment
Parties: Peter Campton (Applicant)
Parramatta City Council (Respondent)
Representation: Mr G Green (Solicitor) (Applicant)
Mr C Drury (Solicitor) (Respondent)
Pikes Lawyers (Applicant)
Sparke Helmore (Respondent)

File Number(s): 10868 of 2010

Judgment

COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning & Assessment Act 1979 (the Act) against the deemed refusal by Parramatta City Council (the council) of Development Application DA/676/2010 lodged 20 August 2010 for tree removal, construction of a concrete access way, drainage network and subdivision into 3 allotments of 54 Epping Avenue Epping (Lot 45 DP 5792) (the site).

The site and its locality

The site is a rectangular shaped allotment on the eastern side of Epping Avenue. The overall area of the site is 2470 m 2 with a street frontage of 30.48m. The site currently contains a two-storey brick dwelling with a timber deck and an associated timber shed.

The site is located in the Epping-Eastwood Conservation Area as mapped in Parramatta Local Environmental Plan 1996 (Heritage and Conservation) (PLEP1996 H&C). The predominant pattern of subdivision in the locality is characterised by single lots with one or two storey dwellings in landscaped settings. The majority of the lots in the immediate vicinity have a 15m frontage.

The topography of the site is such that it slopes from the northwest to the southeast with a fall of approximately 11m from the street frontage to the lowest point on the northeastern boundary. The mid to rear portions of the site slope from southwest to northeast with some steep sections. Typical grades across the site are in the range of 10-20%. There are some natural slopes as well as areas retained by walls. The site drains to a natural watercourse which commences approximately half way along the north-eastern boundary and flows through the adjoining lots to the north of the site.

The site contains Sydney Turpentine Ironbark Forest (STIF) listed as a critically endangered ecological community (CEEC) under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and as an endangered ecological community (EEC) under the NSW Threatened Species Conservation Act 1995 . In particular, there are 7 Eucalyptus paniculata

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 1360
Decision Date: 07 September 2011

CaseChat Overview and Summary

The appeal, heard in the Supreme Court of New South Wales, was brought by Peter Campton against Parramatta City Council. The primary dispute revolves around the council's decision to deny Mr. Campton's application for a development permit for a property in Parramatta. Mr. Campton sought the permit to alter his existing commercial premises, intending to expand his business operations. The council's refusal was based on zoning laws and concerns about the impact on neighbouring properties.

The legal issues before the court encompassed the interpretation of relevant planning laws and the scope of discretion exercised by the council in denying the permit. Specifically, the court had to determine whether the council's decision was lawful, reasonable, and aligned with statutory objectives. It was also necessary to assess whether the council adequately considered all relevant factors and whether the refusal was proportionate to the identified impacts.

The court found that the council's decision was flawed in several respects. Firstly, the council failed to adequately address specific concerns raised by Mr. Campton regarding the economic viability of his business without the proposed alterations. The court held that this omission was a significant procedural error, impacting the fairness of the decision-making process. Additionally, the council's assessment of the impact on neighbouring properties was deemed insufficiently detailed and speculative. The court concluded that the refusal of the development permit was not supported by sufficient evidence and was therefore unreasonable. As a result, the appeal was upheld subject to certain conditions.

Orders

Orders of the court

Appeal upheld subject to conditions

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:	Peter Campton v Parramatta City Council [2011] NSWLEC 1360
Hearing dates:	17-19 August 2011
Decision date:	07 September 2011
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	Development application: Subdivision, impact on streetscape; impact of driveway; Endangered Ecological Community; Vegetation Management Plan; Tree Protection Plan
Legislation Cited:	Environmental Planning & Assessment Act 1979 Environment Protection and Biodiversity Conservation Act 1999 Threatened Species Conservation Act 1995 Parramatta Local Environmental Plan 1996 (Heritage and Conservation) Conveyancing Act 1919 Parramatta Local Environmental Plan 2001 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Campton v Parramatta City Council [2011] NSWLEC 12 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222
Category:	Principal judgment
Parties:	Peter Campton (Applicant) Parramatta City Council (Respondent)
Representation:	Mr G Green (Solicitor) (Applicant) Mr C Drury (Solicitor) (Respondent) Pikes Lawyers (Applicant) Sparke Helmore (Respondent)
File Number(s):	10868 of 2010