Ryan v Jarret - [2006] NSWLEC 183

Land and Environment Court

of New South Wales

CITATION: Ryan & Anor v Jarret & Anor [2006] NSWLEC 183

PARTIES: APPLICANTS
Desmond Michael Ryan
Pamela Mae Ryan
RESPONDENTS
Warren Allen Jarrett
Maureen Elizabeth Jarrett

FILE NUMBER(S): 40991 of 2005

CORAM: Pain J

KEY ISSUES: Development Consent :- Whether use of recovered paper solids on land is designated development requiring development consent - separate and independant uses of land - meaning of works - meaning of waste

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000 cl 32 Sch 3, cl 38 Pt 4 Sch 3
Protection of the Environment Operations Act 1997
Shoalhaven LEP 1985

CASES CITED: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404;
Council of the City of Parramatta v Brickworks Limited (1971-1972) 128 CLR 1;
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157;
Hollis v Shellharbour City Council [2002] NSWLEC 83 ;
Penrith City Council v Waste Management Authority & Anor (1990) 71 LGERA 376 ;
Warren v Coombes (1979) 142 CLR 531

DATES OF HEARING: 30/03/2006

DATE OF JUDGMENT:
04/13/2006

LEGAL REPRESENTATIVES: APPLICANTS
Mr D Wilson
SOLICITOR
Mr J Ryan
RESPONDENTS
Ms A Pearman
SOLICITORS
Kearns & Garside with RMB Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

13 April 2006

40991 of 2005 Desmond Michael Ryan and Pamela Mae Ryan v Warren Allen Jarrett and Maureen Elizabeth Jarrett
JUDGMENT

1 Her Honour: The Applicants own a dairy farming property at Coolangatta. The Respondents are a neighbouring dairy farming property. The Applicants are the owners of 961 Bolong Road, Coolangatta, being Lot 4 in DP836225 in the Local Government Area of Shoalhaven, Parish of Coolangatta, County of Camden having an area of about 30.9ha (“the Applicants’ land”). The Respondents are the owners of 1065 Bolong Road, Coolangatta, being Lots 25 and 26 in DP1045418, having an area of about 65.52ha and 56.29ha respectively (“the Respondents’ land”). The Respondents’ land is located to the north and east of the Applicants’ land.

2 The Applicants are seeking the following declarations and orders in their Class 4 application.

(a) A declaration that the Respondents are carrying out development which requires development consent on the land at 995 Bolong Road, Coolangatta, being Lots 25 and 26 in DP1045418, without development consent:

(i) the bringing onto the Respondents’ land by truck recovered paper solids (“RPS”) and/or waste paper sludge and/or waste produce derived from the process of pulping timber product;

(ii) the placement of and/or treatment of materials on the Respondents’ land;

(iii) the spreading on the Respondents’ land of that material.

(b) An order that the Respondents and each of them be restrained from carrying out or causing to be carried out that development on Lots 25 and 26 without development consent being obtained.

Agreed facts

3 The parties prepared a statement of agreed facts from which the following is extracted. On 13 March 1996, the Shoalhaven City Council granted development consent 96/3007 for the…

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: [2006] NSWLEC 183
Decision Date: 04/13/2006

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with a case where Desmond Michael Ryan and Pamela Mae Ryan sought a declaration that the Respondents, Warren Allen Jarrett and Maureen Elizabeth Jarrett, were carrying out development on their land which required development consent. The Applicants argued that the Respondents were using recovered paper solids (RPS) on their land, which constituted designated development under the Environmental Planning and Assessment Act 1979. The key issues before the Court were whether the use of RPS on the Respondents' land constituted a separate and independent use of land requiring development consent, and whether the activity of spreading RPS on the land was designated development under the Environmental Planning and Assessment Regulation 2000.

The Court found that the activity of spreading RPS on the Respondents' land was not a separate and independent use of land, but rather was ancillary to the primary use of the land for agriculture. The Court reasoned that the spreading of RPS was for pasture improvement purposes and did not require development consent. Additionally, the Court held that the activity did not fall within the definition of designated development under the Environmental Planning and Assessment Regulation 2000, as the spreading of RPS was not waste management "works" as defined in the legislation.

As a result, the Applicants' Class 4 application was dismissed. The Court also reserved the question of costs for further consideration.

Orders