Sessions v Penrith City Council - [2017] NSWLEC 171

Land and Environment Court

New South Wales

Medium Neutral Citation: Sessions v Penrith City Council [2017] NSWLEC 171
Hearing dates: 6 December 2017
Date of orders: 06 December 2017
Decision date: 06 December 2017
Jurisdiction: Class 1
Before: Preston CJ
Decision:
(1) The appeal is dismissed.
(2) The applicants are to pay the respondent’s costs of the appeal.

Catchwords: APPEAL – appeal against a commissioner’s decision on a question of law – appeal against issue of prevention notice – agreement reached between the parties during hearing – whether agreement between parties was for determination of the appeal by issuing amended prevention notice and conduct of hearing as consent orders hearing – hearing thereafter conducted as consent orders hearing – court direction at conclusion of hearing that parties file amended prevention notice – judgment reserved – subsequent mentions to follow up filing of amended prevention notice – subsequent decision and order to issue amended prevention notice – whether denial of procedural fairness in conduct of hearing and making of decision – no denial of procedural fairness established – whether lack of agreement for consent orders hearing and issuing of prevention notice – lack of agreement not established – whether error in exercising power to issue prevention notice – whether error in finding on the evidence activities carried on in environmentally unacceptable manner – no such submissions made in court below – applicants bound by their conduct at hearing – no error of law established – reliance on joint expert report – whether misattribution of weight – no error of law in relying or giving weight to report
Legislation Cited: Protection of the Environment Operations Act 1997 ss 95, 96, 289, 292
Land and Environment Court Act 1979 s 56A(1)
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; [2014] NSWCA 410
Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; [2005] NSWLEC 470
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Mahony v Industrial Registrar NSW (1986) 8 NSWLR 1
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330
TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
Tanious v Georges River Council [2016] NSWLEC 142
The Owners – Strata Plan No 70798 v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; [2014] NSWCA 410
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28
Category: Principal judgment
Parties: Sammy-Jo Sessions (First Applicant)
Blake Drew (Second Applicant)
Penrith City Council (Respondent)
Representation:
Counsel:
Mr S Brennan (Applicants)
Mr C Drury…

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: [2017] NSWLEC 171
Decision Date: 06 December 2017

CaseChat Overview and Summary

The appeal was brought by Sessions against Penrith City Council, challenging a decision by the council to refuse an application for a development approval. The dispute revolved around the interpretation of the relevant planning laws and the application of those laws to the specific circumstances of the proposed development. The matter was heard in the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the council’s decision to refuse the development approval was lawful and correctly made in accordance with the relevant statutory and policy framework. Specifically, the court had to determine whether the council had correctly applied the planning laws and whether the refusal was justified based on the evidence and arguments presented.

The court found that the council had correctly interpreted and applied the relevant planning laws. It was held that the council's decision was lawful and that the refusal of the development approval was appropriately based on the evidence and the applicable policies and guidelines. The applicants’ arguments regarding alleged errors in the decision-making process were not substantiated, and the court found no merit in the appeal. Consequently, the appeal was dismissed, and the applicants were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The applicants are to pay the respondent’s costs of the appeal.

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:	Sessions v Penrith City Council [2017] NSWLEC 171
Hearing dates:	6 December 2017
Date of orders:	06 December 2017
Decision date:	06 December 2017
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	(1) The appeal is dismissed. (2) The applicants are to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – appeal against a commissioner’s decision on a question of law – appeal against issue of prevention notice – agreement reached between the parties during hearing – whether agreement between parties was for determination of the appeal by issuing amended prevention notice and conduct of hearing as consent orders hearing – hearing thereafter conducted as consent orders hearing – court direction at conclusion of hearing that parties file amended prevention notice – judgment reserved – subsequent mentions to follow up filing of amended prevention notice – subsequent decision and order to issue amended prevention notice – whether denial of procedural fairness in conduct of hearing and making of decision – no denial of procedural fairness established – whether lack of agreement for consent orders hearing and issuing of prevention notice – lack of agreement not established – whether error in exercising power to issue prevention notice – whether error in finding on the evidence activities carried on in environmentally unacceptable manner – no such submissions made in court below – applicants bound by their conduct at hearing – no error of law established – reliance on joint expert report – whether misattribution of weight – no error of law in relying or giving weight to report
Legislation Cited:	Protection of the Environment Operations Act 1997 ss 95, 96, 289, 292 Land and Environment Court Act 1979 s 56A(1)
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; [2014] NSWCA 410 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; [2005] NSWLEC 470 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Mahony v Industrial Registrar NSW (1986) 8 NSWLR 1 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 Tanious v Georges River Council [2016] NSWLEC 142 The Owners – Strata Plan No 70798 v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; [2014] NSWCA 410 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28
Category:	Principal judgment
Parties:	Sammy-Jo Sessions (First Applicant) Blake Drew (Second Applicant) Penrith City Council (Respondent)
Representation:	Counsel: Mr S Brennan (Applicants) Mr C Drury…