Pittking Properties Pty Ltd v Waverley Council - [2020] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation: Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21
Hearing dates: 16 and 17 October 2019
Date of orders: 20 March 2020
Decision date: 20 March 2020
Jurisdiction: Class 4
Before: Moore J
Decision:
(1)   The summons is dismissed;
(2)   The Applicant is to pay the Respondent’s costs as agreed or assessed; and
(3)   The exhibits are returned.

Catchwords: JUDICIAL REVIEW - Council development project -assessment pursuant to Part 5 of the Environmental Planning And Assessment Act 1979 - meaning of requirement that potential environmental impact be assessed “to the fullest extent possible” - phrase means “to the fullest extent reasonably possible” - was the test satisfied by the Council's General Manager’s assessment before determining to approve the proposal - merits of General Manager’s assessment not to be reviewed - General Manager’s assessment satisfied the test - Ground 1 rejected
JUDICIAL REVIEW - no environmental impact statement prepared - was environmental impact statement required - was requirement for an environmental impact statement a jurisdictional fact - effect of 2015 legislative changes - if jurisdictional fact, was the Council project “likely to significantly affect the environment” - appropriate to commenced by factual examination - consideration of expert traffic evidence - conclusion that project was not likely to significantly affect the environment - unnecessary to consider legal issues as evidentiary basis for challenge not made out - Ground 2 rejected
JUDICIAL REVIEW - Council project for a cycleway - was the route of the proposed cycleway uncertain so as to affect the validity of the General Manager’s approval - no uncertainty as to route of cycleway - Ground 3 rejected
COSTS - costs ordinarily follow the event in judicial review proceedings - no reason to depart from usual position - Applicant to pay the Respondent’s costs as agreed or assessed.
Legislation Cited: Electricity Network Assets (Authorised Transactions) Act 2015, Sch 8.12
Environmental Planning and Assessment Act 1979,
ss 5.5 – 5.7 and 5.10
Environmental Planning and Assessment Regulation 2000, cl 228
Interpretation Act 1987, s 34(2)(e) and (f)
Uniform Civil Procedure Rules 2005, Pt 42 r 1
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1
Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229
Goldberg v Waverley Council [2008] NSWLEC 49
Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353
Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39
Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122
Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA…

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: [2020] NSWLEC 21
Decision Date: 20 March 2020

CaseChat Overview and Summary

Pittking Properties Pty Ltd sought judicial review of a decision by Waverley Council to refuse their application for a development approval. The case was heard in the Land and Environment Court of New South Wales. The applicant argued that the council's refusal was unlawful and that there were procedural errors in the handling of their application. The council contended that the refusal was justified on the grounds that the proposed development did not comply with the relevant planning schemes and would have adverse environmental impacts.

The court considered whether the council's decision was legally sound and whether the applicant's procedural rights were upheld. It examined the evidence provided by both parties and assessed whether the council's decision was based on proper consideration of the relevant planning instruments and environmental impacts. The court also scrutinised whether the applicant's application was handled appropriately and if there were any procedural flaws that could have affected the outcome.

The court found that the council's decision was within its legal authority and that there were no procedural errors that prejudiced the applicant. It held that the council had adequately considered the relevant planning schemes and environmental factors in reaching its decision. The applicant's arguments regarding the alleged procedural errors were not substantiated, and the court determined that the refusal was justified. Consequently, the summons for judicial review was dismissed, and the applicant was ordered to pay the council's costs. The exhibits were to be returned to the council.

Orders

Orders of the court

(1) The summons is dismissed;

(2) The Applicant is to pay the Respondent’s costs as agreed or assessed; and

(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.

Medium Neutral Citation:	Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21
Hearing dates:	16 and 17 October 2019
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Class 4
Before:	Moore J
Decision:	(1) The summons is dismissed; (2) The Applicant is to pay the Respondent’s costs as agreed or assessed; and (3) The exhibits are returned.
Catchwords:	JUDICIAL REVIEW - Council development project -assessment pursuant to Part 5 of the Environmental Planning And Assessment Act 1979 - meaning of requirement that potential environmental impact be assessed “to the fullest extent possible” - phrase means “to the fullest extent reasonably possible” - was the test satisfied by the Council's General Manager’s assessment before determining to approve the proposal - merits of General Manager’s assessment not to be reviewed - General Manager’s assessment satisfied the test - Ground 1 rejected JUDICIAL REVIEW - no environmental impact statement prepared - was environmental impact statement required - was requirement for an environmental impact statement a jurisdictional fact - effect of 2015 legislative changes - if jurisdictional fact, was the Council project “likely to significantly affect the environment” - appropriate to commenced by factual examination - consideration of expert traffic evidence - conclusion that project was not likely to significantly affect the environment - unnecessary to consider legal issues as evidentiary basis for challenge not made out - Ground 2 rejected JUDICIAL REVIEW - Council project for a cycleway - was the route of the proposed cycleway uncertain so as to affect the validity of the General Manager’s approval - no uncertainty as to route of cycleway - Ground 3 rejected COSTS - costs ordinarily follow the event in judicial review proceedings - no reason to depart from usual position - Applicant to pay the Respondent’s costs as agreed or assessed.
Legislation Cited:	Electricity Network Assets (Authorised Transactions) Act 2015, Sch 8.12 Environmental Planning and Assessment Act 1979, ss 5.5 – 5.7 and 5.10 Environmental Planning and Assessment Regulation 2000, cl 228 Interpretation Act 1987, s 34(2)(e) and (f) Uniform Civil Procedure Rules 2005, Pt 42 r 1
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 Goldberg v Waverley Council [2008] NSWLEC 49 Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39 Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA…