Seraglio v Shoalhaven City Council - [2017] NSWLEC 45

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Seraglio v Shoalhaven City Council [2017] NSWLEC 45
Hearing dates: 18 and 19 April 2017
Date of orders: 16 May 2017
Decision date: 26 April 2017
Jurisdiction: Class 1
Before: Preston CJ
Decision:
The Court orders:
(1) Leave is granted to the applicant to amend the plan of subdivision in the form of the plan of proposed residential subdivision by Allen Price & Scarratts, drawing no 26513-01 Revision 4 dated 30 September 2015.
(2) The appeal is upheld.
(3) Development consent is granted to development application No SF10511 for a two lot Torrens title subdivision and demolition of existing deck at Lot 2 in Deposited Plan 165748, known as 22 Bowen Street, Huskisson, on the conditions in Annexure A.
(4) Costs are reserved.

Catchwords: APPEAL – refusal of development application for subdivision of land into two lots – two existing dwelling houses on land – subdivision results in a dwelling house on each lot – current environmental planning instrument prohibits dwelling houses – whether subdivision prohibited or results in statutory contravention – whether existing uses of land for purpose of dwelling houses – existing uses of each site of dwelling house for purpose of dwelling houses – current environmental planning instrument permitting dual occupancies did not change purpose of use of each site for dwelling houses – subdivision not prohibited and no statutory contravention – development consent should be granted to subdivision.
Legislation Cited: Environmental Planning and Assessment Act 1979 s 97(1), 106, 107(1), 109
Interim Development Order No 1 – Shire of Shoalhaven
Local Government Act 1919 s 342U(4)
Uniform Civil Procedure Rules 2005 r 28.2
Shoalhaven Local Environmental Plan 2014
Shoalhaven Local Environmental Plan 1985 (Amendment No 73)
Shoalhaven Local Environmental Plan 1985 cl 18A
Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107
BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270
Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147
Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371; [2001] NSWCA 389
Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305
Shire of Perth v O’Keefe (1964) 110 CLR 529
Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26
Category: Principal judgment
Parties: Dino Seraglio (Applicant)
Shoalhaven City Council (Respondent)
Representation:
Counsel:
Mr C Ireland (Applicant)
Mr P Clay SC (Respondent)
Solicitors:
Planning Law Solutions (Applicant)
Ms S Neilson, Shoalhaven City Council (Respondent)

File Number(s): 14793 of 2017
Publication restriction: Nil

Judgment

Nature of case and outcome

The applicant in the proceedings, Mr Seraglio, applied for development consent for a Torrens title subdivision of land at Huskisson, being Lot 2 Deposited Plan 165748 (‘the land’), into two new…

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.

Continue reading Seraglio v Shoalhaven City Council

Details

AGLC: Seraglio v Shoalhaven City Council [2017] NSWLEC 45
Case: [2017] NSWLEC 45
Decision Date: 26 April 2017

CaseChat Overview and Summary

Seraglio sought leave to amend a plan of subdivision and appealed a decision by Shoalhaven City Council to refuse development consent for a two lot residential subdivision. The dispute was heard in the Land and Environment Court of New South Wales. The applicant argued that the council's decision was unreasonable as it did not properly consider the relevant planning policies and environmental factors. The council contended that the proposed subdivision did not comply with the local environmental plan and would have adverse environmental impacts.

The court found that the council's decision was indeed unreasonable as it failed to adequately consider the relevant planning policies and environmental factors. The court emphasised the importance of considering all relevant matters in making a decision on a development application. The court also noted that the proposed subdivision was consistent with the relevant planning policies and would not have significant adverse environmental impacts.

Accordingly, the court granted leave to amend the plan of subdivision, upheld the appeal, and granted development consent subject to certain conditions. The court found that the proposed subdivision was consistent with the relevant planning policies and would not have significant adverse environmental impacts. The court also found that the council's decision to refuse development consent was unreasonable as it failed to properly consider the relevant matters. Costs were reserved.

Orders

Orders of the court

The Court orders:

(1) Leave is granted to the applicant to amend the plan of subdivision in the form of the plan of proposed residential subdivision by Allen Price & Scarratts, drawing no 26513-01 Revision 4 dated 30 September 2015.

(2) The appeal is upheld.

(3) Development consent is granted to development application No SF10511 for a two lot Torrens title subdivision and demolition of existing deck at Lot 2 in Deposited Plan 165748, known as 22 Bowen Street, Huskisson, on the conditions in Annexure A.

(4) Costs are reserved.

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:	Seraglio v Shoalhaven City Council [2017] NSWLEC 45
Hearing dates:	18 and 19 April 2017
Date of orders:	16 May 2017
Decision date:	26 April 2017
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The Court orders: (1) Leave is granted to the applicant to amend the plan of subdivision in the form of the plan of proposed residential subdivision by Allen Price & Scarratts, drawing no 26513-01 Revision 4 dated 30 September 2015. (2) The appeal is upheld. (3) Development consent is granted to development application No SF10511 for a two lot Torrens title subdivision and demolition of existing deck at Lot 2 in Deposited Plan 165748, known as 22 Bowen Street, Huskisson, on the conditions in Annexure A. (4) Costs are reserved.
Catchwords:	APPEAL – refusal of development application for subdivision of land into two lots – two existing dwelling houses on land – subdivision results in a dwelling house on each lot – current environmental planning instrument prohibits dwelling houses – whether subdivision prohibited or results in statutory contravention – whether existing uses of land for purpose of dwelling houses – existing uses of each site of dwelling house for purpose of dwelling houses – current environmental planning instrument permitting dual occupancies did not change purpose of use of each site for dwelling houses – subdivision not prohibited and no statutory contravention – development consent should be granted to subdivision.
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 97(1), 106, 107(1), 109 Interim Development Order No 1 – Shire of Shoalhaven Local Government Act 1919 s 342U(4) Uniform Civil Procedure Rules 2005 r 28.2 Shoalhaven Local Environmental Plan 2014 Shoalhaven Local Environmental Plan 1985 (Amendment No 73) Shoalhaven Local Environmental Plan 1985 cl 18A
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371; [2001] NSWCA 389 Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O’Keefe (1964) 110 CLR 529 Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26
Category:	Principal judgment
Parties:	Dino Seraglio (Applicant) Shoalhaven City Council (Respondent)
Representation:	Counsel: Mr C Ireland (Applicant) Mr P Clay SC (Respondent) Solicitors: Planning Law Solutions (Applicant) Ms S Neilson, Shoalhaven City Council (Respondent)
File Number(s):	14793 of 2017
Publication restriction:	Nil