Pittwater Council v Mount - [2000] NSWLEC 256

Land and Environment Court

of New South Wales

CITATION: Pittwater Council v Mount [2000] NSWLEC 256

PARTIES:
APPELLANT:
Pittwater Council
RESPONDENT:
Mount

FILE NUMBER(S): 10270 of 2000

CORAM: Bignold J

KEY ISSUES: Section 56A Appeal :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97
Land and Environment Court Act 1979, s 56A

CASES CITED: Brimbella Pty Ltd v Mosman Council (1985) 79 LGERA 367;
Carstens v Pittwater Council (1999) NSWLEC 249· Hoskins v Waverley Council (1999) NSWLEC 236;
Schaffer Corporation Ltd v Hawkesbury Council (1992) 77 LGRA 21.

DATES OF HEARING: 6 December 2000

DATE OF JUDGMENT:
12/11/2000

LEGAL REPRESENTATIVES:

APPELLANT:
Mr A Galasso, Barrister
SOLICITORS
Mallesons Stephen Jaques
RESPONDENT:
Mr D Officer QC with Mrs J Kelly, Barrister
SOLICITORS
Gadens Ridgeway

JUDGMENT:

IN THE LAND AND Matter No . 10270 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 11 December 2000

PITTWATER COUNCIL

Appellant

SALLY FIONA MOUNT

Respondent

JUDGMENT ON s56A APPEAL

Bignold J:

1. This is an appeal pursuant to the Land and Environment Court Act 1979 s 56A (the Court Act) against the decision of Commissioner Murrell upholding an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) and granting development consent to the carrying out of development comprising a large roofed horse arena and an extension to an existing dwelling-house on a rural property known as 54 Lane Cove Road, Ingleside.

2. The appeal is limited to error of law.

3. In its Statement of the grounds of appeal filed pursuant to Pt 13, r 37 of the Rules of Court (a copy of which is annexed hereto), the Appellant asserts three related errors of law in the Commissioner’s judgment, which can be summarised as follows—
(i.) that she applied an erroneous approach to the evaluation that was required to be made by the EP&A Act, s 79C(1) by asking whether the proposed development would be “consistent with” the character of the non-urban area and in consequence, she failed to consider the matters enumerated in that section that were relevant to the determination;.
(ii.) that she applied the same erroneous approach to her consideration of the draft Development Control Plan No 24 (the draft DCP) and in consequence failed to consider the draft DCP; and
(iii.) that she made a number of factual findings that were erroneously arrived at by applying the same erroneous approach.

4. (On the hearing of the Appeal, the Appellant abandoned an alternative basis for the third alleged error, namely that the findings were “manifestly unreasonable”.)

5. In amplification of these alleged errors of law, the Appellant placed the utmost importance upon the Commissioner’s citation of, and apparent reliance upon, a passage from the judgment of the Chief Judge in Schaffer Corporation Ltd v Hawkesbury Council (1992) 77 LGRA 21. The citation occurs in the following passage at par 47 of the Commissioner’s judgment:

The subject site is zoned for…

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: [2000] NSWLEC 256
Decision Date: 12/11/2000

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Pittwater Council appealed a decision of Commissioner Murrell, who had granted development consent for a horse arena and dwelling extension on a rural property. The appeal was limited to error of law. The Council argued that the Commissioner erred in her evaluation of the development application under the Environmental Planning and Assessment Act 1979, section 79C(1), by applying an erroneous approach to determining whether the proposed development would be "consistent with" the character of the non-urban area. The Council further argued that the Commissioner failed to properly consider the draft Development Control Plan No 24, and made factual findings that were erroneously arrived at. The Court found that the Commissioner's consideration of relevant matters was not legally flawed, and that her determinations were within the scope of her adjudicative function. The Court held that the Commissioner's evaluation of the development application was in accordance with section 79C(1) of the EP&A Act, and that the weight to be given to relevant considerations was a matter for the decision-maker. The appeal was dismissed with costs.

Orders