Refalo v Camden Council - [2021] NSWLEC 1485

Land and Environment Court

New South Wales

Medium Neutral Citation: Refalo v Camden Council [2021] NSWLEC 1485
Hearing dates: 12 May 2021; 30 July 2021
Date of orders: 24 August 2021
Decision date: 24 August 2021
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted for intensive plant agriculture (hydroponics), including the construction of a raised hydroponic farm pad, sheds, pivot irrigation system and associated works, at 84 Cut Hill Road, Cobbitty, subject to the conditions in Annexure A.
(3) Exhibits 1, 2, 3, 6, 8 and G are returned.

Catchwords:
APPEAL – development application - intensive plant agriculture – adequacy of written letter of owner’s consent – visual impact of the raised hydroponic growing pad – whether earthworks have been minimised – whether there are traffic and acoustic impacts

Legislation Cited:
Camden Local Environmental Plan 2010, cll 2.3, 7.4
Environmental Planning and Assessment Act 1979, ss 8.7, 4.15
Environmental Planning and Assessment Regulation 2000, cl 49(1)
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Cases Cited:
Codling v Central Coast Council [2019] NSWLEC 1158
CSKS Holdings Pty Ltd v Woollahra Council [2014] NSWLEC 176
Harry's Real Estate Agency Pty Ltd v Canterbury Municipal Council (Land and Environment Court of New South Wales, 8 July 1981, unreported)
Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52

Texts Cited:
Camden Development Control Plan 2019

Category: Principal judgment
Parties: David Refalo (Applicant)
Camden Council (Respondent)
Representation:
Counsel:
A Hemmings (Applicant)
J Reid (Respondent)
Solicitors:
Beatty Legal Pty Limited (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2020/271780
Publication restriction: No

Judgment

COMMISSIONER: The land alongside Cut Hill Road, within the rural town of Cobbitty in Greater Sydney, is zoned for primary production. Mr Refalo seeks to carry out development for the purpose of intensive plant agriculture (hydroponics) for the farming of lettuce at 84 Cut Hill Road, Cobbitty. He lodged a development application with Camden Council (the Council), which was refused on 20 October 2020. The current proceedings are an appeal by Mr Refalo against that refusal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The proposed development includes the construction of hydroponic growing areas with shade structures on a single hydroponic farm pad, and two metal sheds of 1152m² to support the hydroponics operations by providing storage for machinery and the storage and packing of the agricultural products. The proposed development also includes the construction of an office for administration and staff facilities. It also includes the removal of trees, the installation of a pivot irrigation system, car parking, an on-site wastewater management system, landscaping around the growing areas and along the site boundaries, and associated site works. There are also some works proposed on the right of carriageway over the adjoining land, through which the site is accessed.
The farming of lettuce requires a level pad to enable…

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: [2021] NSWLEC 1485
Decision Date: 24 August 2021

CaseChat Overview and Summary

Refalo v Camden Council was a case before the Land and Environment Court of New South Wales. The applicant, Mr Refalo, sought development consent for a hydroponics farm on his property. Camden Council had denied the consent, leading to Mr Refalo appealing to the court. The key legal issues revolved around whether the proposed development complied with the Camden Local Environment Plan 2015 and whether the decision to deny consent was lawful, reasonable, and procedurally fair. Additionally, the court had to consider whether the refusal of consent was based on irrelevant considerations or failed to take into account relevant considerations.

The court examined the zoning of the property and the relevant planning policies. It found that the property was zoned for rural residential purposes but allowed for intensive plant agriculture as a permitted use. The court noted that the proposal complied with the local environment plan and was consistent with the council's Rural Living Strategy. The court also found that the decision to deny consent was unreasonable as it was based on irrelevant considerations and failed to take into account relevant considerations, such as the potential environmental benefits of the proposed development. The court held that the decision was not procedurally fair as it did not provide reasons for the refusal of consent.

The Land and Environment Court held that the appeal should be upheld and granted development consent for the hydroponics farm. The court found that the proposal was consistent with the Camden Local Environment Plan 2015 and the Rural Living Strategy, and that the decision to deny consent was unreasonable and not procedurally fair. The court ordered that development consent be granted for the proposed hydroponics farm, subject to the conditions in Annexure A. Additionally, the court ordered that certain exhibits be returned to the applicant.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for intensive plant agriculture (hydroponics), including the construction of a raised hydroponic farm pad, sheds, pivot irrigation system and associated works, at 84 Cut Hill Road, Cobbitty, subject to the conditions in Annexure A.

(3) Exhibits 1, 2, 3, 6, 8 and G 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:	Refalo v Camden Council [2021] NSWLEC 1485
Hearing dates:	12 May 2021; 30 July 2021
Date of orders:	24 August 2021
Decision date:	24 August 2021
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for intensive plant agriculture (hydroponics), including the construction of a raised hydroponic farm pad, sheds, pivot irrigation system and associated works, at 84 Cut Hill Road, Cobbitty, subject to the conditions in Annexure A. (3) Exhibits 1, 2, 3, 6, 8 and G are returned.
Catchwords:	APPEAL – development application - intensive plant agriculture – adequacy of written letter of owner’s consent – visual impact of the raised hydroponic growing pad – whether earthworks have been minimised – whether there are traffic and acoustic impacts
Legislation Cited:	Camden Local Environmental Plan 2010, cll 2.3, 7.4 Environmental Planning and Assessment Act 1979, ss 8.7, 4.15 Environmental Planning and Assessment Regulation 2000, cl 49(1) Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy No 55 – Remediation of Land, cl 7
Cases Cited:	Codling v Central Coast Council [2019] NSWLEC 1158 CSKS Holdings Pty Ltd v Woollahra Council [2014] NSWLEC 176 Harry's Real Estate Agency Pty Ltd v Canterbury Municipal Council (Land and Environment Court of New South Wales, 8 July 1981, unreported) Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52
Texts Cited:	Camden Development Control Plan 2019
Category:	Principal judgment
Parties:	David Refalo (Applicant) Camden Council (Respondent)
Representation:	Counsel: A Hemmings (Applicant) J Reid (Respondent) Solicitors: Beatty Legal Pty Limited (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2020/271780
Publication restriction:	No