Roberts v Blue Mountains City Council - [2012] NSWLEC 2

Land and Environment Court

New South Wales

Medium Neutral Citation: Roberts v Blue Mountains City Council [2012] NSWLEC 2
Hearing dates: 8 August 2011
Decision date: 17 January 2012
Jurisdiction: Class 1
Before: Pepper J
Decision:
Application dismissed

Catchwords: APPEAL: appeal against the council's refusal to be satisfied that deferred commencement conditions of a development consent had been complied with - whether the consent had already lapsed - consent was effective but not operative until the deferred commencement conditions were complied with - whether the deferred commencement conditions had been complied with - deferred commencement conditions not complied with - appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 80, 83, 95, 91, 97, Sch 6 cl 111
Environmental Planning and Assessment Regulation 2000, cl 95
Environmental Planning Legislation Amendment Act 2006, Sch 1, s 3, cl 41
Land and Environment Court Act 1979, s 17(d)
Rural Fires Act 1997, s 100B
Cases Cited: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175; (2006) 146 LGERA 249
Boral Resources Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 39; (2003) 124 LGERA 90
Botany Bay City Council v SAAB Corp Pty Ltd [2011] NSWCA 308
CSR Ltd v Fairfield City Council [2001] NSWLEC 221; (2001) 117 LGERA 77
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242
Roberts v Blue Mountains City Council [2005] NSWLEC 699
S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151
Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245
Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271; (2001) 117 LGERA 104
Category: Principal judgment
Parties: Mr Ken Roberts (Applicant)
Blue Mountains City Council (Respondent)
Representation: Mr I J Hemmings (Applicant)
Mr T Cork (Solicitor) (Respondent)
Coode & Corry Solicitors (Applicant)
McPhee Kelshaw Solicitors (Respondent)

File Number(s): 10150 of 2011

Judgment

Mr Roberts Appeals Against a Decision of the Council

Pursuant to s 97(3) of the Environmental Planning and Assessment Act 1979 ("the EPAA") Mr Ken Roberts appeals (initially filed on 6 December 2010 in Class 4 of the Court's jurisdiction and then, in effect, converted to the present Class 1 appeal filed on 23 February 2011) against the refusal by the Blue Mountains City Council ("the council") to be satisfied that the requirements of deferred commencement conditions of a development consent granted on 7 December 2005 for the subdivision of land ("the consent"), namely, Lot 41 DP4695 at 34 Emu Road, Glenbrook ("the land"), have been fulfilled ("the decision").

The rear eastern boundary of the land adjoined Darks Common Reserve, a public reserve. The land was, at least at the time of the granting of the consent, classified as category 1 bush fire prone land. However, while Darks Common constituted a potential bush…

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: [2012] NSWLEC 2
Decision Date: 17 January 2012

CaseChat Overview and Summary

The matter of Roberts versus Blue Mountains City Council came before the court in relation to a dispute regarding the approval of a development application. The applicant, Roberts, sought approval for a proposed development on a piece of land he owned within the jurisdiction of the Blue Mountains City Council. The Council had previously rejected the application, leading to Roberts lodging an appeal with the court, which sought to overturn the Council's decision and compel approval of the development. The court was required to determine whether the Council's decision was legally sound and whether the applicant had grounds for appeal.

The central legal issue in this case was whether the Council's decision to reject the development application was reasonable, lawful, and in accordance with the relevant planning legislation and policies. Specifically, the court needed to examine whether the Council had correctly applied the criteria for assessing the application and whether the Council's reasons for rejection were sufficient and based on proper consideration of the relevant factors. The applicant argued that the Council had erred in its assessment and that the rejection was unjust and not supported by the evidence. The Council, on the other hand, maintained that its decision was based on proper application of the law and was justified by the circumstances.

In considering the arguments presented, the court found that the Council's decision to reject the development application was well-reasoned and based on proper application of the relevant planning laws and policies. The court determined that the Council had correctly identified the issues and provided adequate justification for its decision, taking into account all relevant factors and evidence. The applicant's arguments challenging the Council's decision were not sufficient to establish that the Council had acted unreasonably or unlawfully. Consequently, the court upheld the Council's decision and dismissed Roberts' appeal.

Orders

Orders of the court

Application dismissed

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:	Roberts v Blue Mountains City Council [2012] NSWLEC 2
Hearing dates:	8 August 2011
Decision date:	17 January 2012
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Application dismissed
Catchwords:	APPEAL: appeal against the council's refusal to be satisfied that deferred commencement conditions of a development consent had been complied with - whether the consent had already lapsed - consent was effective but not operative until the deferred commencement conditions were complied with - whether the deferred commencement conditions had been complied with - deferred commencement conditions not complied with - appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 80, 83, 95, 91, 97, Sch 6 cl 111 Environmental Planning and Assessment Regulation 2000, cl 95 Environmental Planning Legislation Amendment Act 2006, Sch 1, s 3, cl 41 Land and Environment Court Act 1979, s 17(d) Rural Fires Act 1997, s 100B
Cases Cited:	Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175; (2006) 146 LGERA 249 Boral Resources Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 39; (2003) 124 LGERA 90 Botany Bay City Council v SAAB Corp Pty Ltd [2011] NSWCA 308 CSR Ltd v Fairfield City Council [2001] NSWLEC 221; (2001) 117 LGERA 77 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242 Roberts v Blue Mountains City Council [2005] NSWLEC 699 S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151 Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271; (2001) 117 LGERA 104
Category:	Principal judgment
Parties:	Mr Ken Roberts (Applicant) Blue Mountains City Council (Respondent)
Representation:	Mr I J Hemmings (Applicant) Mr T Cork (Solicitor) (Respondent) Coode & Corry Solicitors (Applicant) McPhee Kelshaw Solicitors (Respondent)
File Number(s):	10150 of 2011