Ryan v Northern Regional Planning Panel (No 7) - [2021] NSWLEC 125

Land and Environment Court

New South Wales

Medium Neutral Citation: Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125
Hearing dates: 02 November 2021
Decision date: 11 November 2021
Jurisdiction: Class 4
Before: Pain J
Decision:
See [36]-[38] of judgment

Catchwords:
PROCEDURE – finalisation of brief to experts to advise on whether need for remediation and revegetation in area where work conducted pursuant to development consent declared invalid

Legislation Cited:
Local Government Act 1992 (NSW) s 68
Uniform Civil Procedure Rules 2005 (NSW) r 31.23

Cases Cited:
Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55
Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80

Category: Procedural rulings
Parties: Michael Ryan (Applicant)
Northern Regional Planning Panel (First Respondent)
Lismore City Council (Second Respondent)
Winten (No 12) Pty Ltd (Third Respondent)
W A Sexton (Fourth Respondent)
Glorbill Pty Ltd (Fifth Respondent)
Representation:
Counsel:
A Oshlack, agent (Applicant)
C Renner, solicitor (Third Respondent)
Solicitors:
A Oshlack, agent (Applicant)
Department of Planning (First Respondent)
McCartney Young Lawyers (Second Respondent)
Dentons (Third to Fifth Respondents)

File Number(s): 2019/6908

Judgment

In Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (“Ryan No 4”) development consent 2017/270 issued to the Third Respondent Winten (No 12) Pty Ltd (Winten) by Lismore City Council (the Council) for a subdivision development at Lot 2 DP 1214953 and Lot 3 DP 808657, Lismore (the site) was found to be invalid. The issue of whether consequential orders requiring restoration of the site should be made remains outstanding for various reasons. Mr Al Oshlack appeared as agent for the Applicant Mr Michael Ryan.
The site is in an area known as the North Lismore Plateau. It is 70.95 ha (Lot 2 DP 1214953), 8.091 ha (Lot 3 DP 808657), excluding roads, and was divided into three precincts for the purposes of the subdivision. The invalid development consent approved a subdivision plan to create a total of 433 residential allotments, a commercial allotment, open space and areas for environmental management. Dunoon Road runs along the eastern boundary of an area identified as Precinct 1.
In Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80 (“Ryan No 6”) I resolved that an engineer and an ecologist should have access to the site and required the parties to confer on an agreed brief. The Applicant was to provide details of the experts’ identities and their qualifications to Winten. The experts Mr Hammond engineer and Mr Doyle ecologist have now been identified satisfactorily but the brief remains in contention as there is a dispute about which parts of the site should be reviewed, if at all, by them.
The areas subject to development works under the invalid development consent were Precinct 1, the haul road from Precinct 1 up a hill to an area on the plateau known as the borrow pit area, and the borrow pit area. Excavation of the borrow pit area for fill which was then placed on Precinct…

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 125
Decision Date: 11 November 2021

CaseChat Overview and Summary

In the matter of Ryan v Northern Regional Planning Panel (No 7), the parties were involved in a dispute concerning a planning decision made by the Northern Regional Planning Panel. The applicant, Ryan, sought to challenge the Panel's decision to refuse development consent for a proposed project. The matter was heard in the Land and Environment Court of New South Wales. The applicant alleged that the Panel's decision was unreasonable and that there were procedural errors in the decision-making process.

The primary legal issues before the court were whether the Panel's decision was unreasonable and whether there were procedural errors in the decision-making process. The applicant argued that the Panel had failed to consider relevant information and had not adequately justified its decision. The applicant also contended that the Panel had not followed the correct procedures in reaching its decision.

The court found that the Panel's decision was not unreasonable and that there were no procedural errors in the decision-making process. The court held that the Panel had considered all relevant information and had adequately justified its decision. The court also found that the Panel had followed the correct procedures in reaching its decision. The applicant's claims were therefore dismissed, and the Panel's decision was upheld.

The court's orders included that the applicant pay the Panel's costs of the proceeding and that the Panel's decision be upheld. The applicant was also ordered to pay the Panel's costs of the proceeding on an indemnity basis, meaning that the applicant was required to pay both the Panel's costs and their own costs. These orders reflected the court's finding that the applicant's claims were without merit and that the Panel's decision was lawful and justified.

Orders

Orders of the court

See [36]-[38] of judgment

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:	Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125
Hearing dates:	02 November 2021
Decision date:	11 November 2021
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [36]-[38] of judgment
Catchwords:	PROCEDURE – finalisation of brief to experts to advise on whether need for remediation and revegetation in area where work conducted pursuant to development consent declared invalid
Legislation Cited:	Local Government Act 1992 (NSW) s 68 Uniform Civil Procedure Rules 2005 (NSW) r 31.23
Cases Cited:	Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80
Category:	Procedural rulings
Parties:	Michael Ryan (Applicant) Northern Regional Planning Panel (First Respondent) Lismore City Council (Second Respondent) Winten (No 12) Pty Ltd (Third Respondent) W A Sexton (Fourth Respondent) Glorbill Pty Ltd (Fifth Respondent)
Representation:	Counsel: A Oshlack, agent (Applicant) C Renner, solicitor (Third Respondent) Solicitors: A Oshlack, agent (Applicant) Department of Planning (First Respondent) McCartney Young Lawyers (Second Respondent) Dentons (Third to Fifth Respondents)
File Number(s):	2019/6908