Seyffer v Shoalhaven City Council - [2006] NSWLEC 564

Reported Decision: (2006) 149 LGERA 19

Land and Environment Court

of New South Wales

CITATION: Seyffer v Shoalhaven City Council [2006] NSWLEC 564

PARTIES:
APPLICANT:
Michael Seyffer
RESPONDENT:
Shoalhaven City Council

FILE NUMBER(S): 40046 of 2006

CORAM: Biscoe J

KEY ISSUES: Development Application :- whether in truth an application to amend an earlier development application

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 4, 78A, 80, 80A
Environmental Planning and Assessment Regulation 2000 cl 55

CASES CITED: Currey v Sutherland Shire Council (2003) 129 LGERA 223;
Flower and Samios Pty Ltd v Shoalhaven City Council [2005] NSWLEC 620;
GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303;
Mison v Randwick Municipal Council (1991) 23 NSWLR 734;
Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687;
Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292;
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376

DATES OF HEARING: 05/06/2006

DATE OF JUDGMENT:
09/08/2006

LEGAL REPRESENTATIVES:
APPLICANT:
Mr M C Craig QC with Mr D P Wilson, barrister
SOLICITORS
Mark McDonald & Associates
RESPONDENT:
Mr P Clay, barrister
SOLICITORS
Morton & Harris

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

8 September 2006

40046 of 2006

MICHAEL SEYFFER v SHOALHAVEN CITY COUNCIL

JUDGMENT

HIS HONOUR:

INTRODUCTION

1 The issue in this case is whether a purported development application lodged by the applicant with the respondent council, should be characterised as an application to amend an earlier development application which council had refused.

2 If so, then it is common ground that it involves such major changes to the first development application, that it would not be capable of being allowed as an amendment under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

3 The applicant is one of the owners of land at Main Road, Cambewarra which is within the local government area of the respondent, Shoalhaven City Council. In 2003, with the owners’ consent, Flower & Samios Pty Ltd lodged a development application with the council for a retirement village in the form of 227 self-care dwellings with associated facilities (first development application). The first development application was made pursuant to State Environment Planning Policy No 5 – Housing for Older People or People with a Disability (SEPP 5). The first development application proposed a connection to the existing reticulated water and sewerage systems operated by Shoalhaven Water outside the development (the town supply system).

4 In July 2004 the council refused the first development application.

5 In June 2005 Flower & Samios Pty Ltd lodged an appeal in this Court against the council’s refusal (proceedings No 10587 of 2005). In September 2005 the appellant in those proceedings moved the Court, pursuant to cl 55 of the EPA Regulation, to amend the first development application to rely upon amended plans. The amended plans included on-site sewage…

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 564
Decision Date: 08/09/2006

CaseChat Overview and Summary

The case of Seyffer v Shoalhaven City Council involved a dispute between Michael Seyffer, an applicant, and Shoalhaven City Council, the respondent, regarding the characterization of a purported development application. The applicant sought a declaration that the purported development application for a water cycle management system was a valid application under the Environmental Planning and Assessment Act 1979. The council argued that the application was in truth an attempt to amend an earlier development application that had been refused. The court considered whether the second development application was a valid application or an attempt to amend the first development application. The applicant argued that more than one development application could be lodged for the same development, and that the second development application was a stand-alone application. The council argued that the second development application should be characterized as an amendment to the first development application. The court found that the second development application was a valid application and not an attempt to amend the first development application. The court held that the applicant was entitled to proceed with both development applications, and that potentially, they could be determined harmoniously with each other. The court ordered that the respondent pay the applicant's costs of the proceedings and that the exhibits be returned. The case highlights the importance of properly characterizing development applications and the potential for multiple development applications for the same development.

Orders