Shoalhaven City Council v Easter Developments Pty Limited

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49
Hearing dates: 2 May 2024
Date of orders: 16 May 2024
Decision date: 16 May 2024
Jurisdiction:Class 1
Before: Preston CJ
Decision:

(1)   The appeal is upheld.

(2)   The decision of Commissioner Espinosa of 10 November 2023 and the orders of 5 December 2023 are set aside.

(3)   The matter is remitted to be determined according to law and these reasons for decision.

(4)   The respondent is to pay the appellant’s costs of this appeal.

Catchwords:

ENVIRONMENT AND PLANNING – Appeal against decision of Commissioner – Development of bush fire prone land – Asset Protection Zone on development site and adjoining council land – compliance with APZ requirements in Planning for Bush Fire Protection (PBP) – performance criterion for provision of APZ on adjoining land in perpetuity – no acceptable or alternative solution proposed – misdirection as to PBP - asking wrong question and not asking right question - misdirection as to Council proposed conditions

Legislation Cited:

Conveyancing Act 1919 (NSW) s 88B

Environment Planning and Assessment Act 1979 (NSW) ss 4.15, 4.46 – 4.50, 8.14

Land and Environment Court Act 1979 (NSW) ss 39, 56A

Local Government Act 1995 (NSW)

Rural Fires Act 1997 (NSW) ss 100A, 100B, Dictionary

Rural Fires Regulation 2022 (NSW) cl 42, 45

Cases Cited:

N/A

Texts Cited:

Planning for Bush Fire Protection 2019

Category:Principal judgment
Parties: Shoalhaven City Council (Appellant)
Easter Developments Pty Limited (Respondent)
Representation:

Counsel:
G Ng SC (Appellant)
A Pearman (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Appellant)
BCP Lawyers & Consultants (Respondent)
File Number(s): 2023/464955
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Land and Environment Court
Jurisdiction:
Class 1
Citation:

[2023] NSWLEC 1671

[2023] NSWLEC 1732

Date of Decision:
10 November 2023
Before:
Espinosa C
File Number(s):
2022/341747

JUDGMENT

  1. Shoalhaven City Council (the Council) has appealed under s 56A of the Land and Environment Court Act 1979 (NSW) (Court Act) against a decision of a Commissioner of the Court, Commissioner Espinosa, to grant development consent to a three-lot subdivision at 21 Duncan Street, Vincentia (the land) to be carried out by Easter Developments Pty Limited (Easter Developments). The land adjoins community land owned by the Council. Both the land and the adjoining Council land are bush fire prone land.

  2. A central issue in the proceedings before the Commissioner was the proposed development’s compliance with the document, Planning for Bush Fire Protection 2019 (PBP). The PBP provides development standards for development on bush fire prone land in New South Wales, including for new residential subdivision allotments. The PBP provides a suite of bush fire protection measures (BPMs) to mitigate the impact of bushfire attack on people and assets (s 1.4 and s 3 of the PBP). One of the BPMs for rural and residential subdivisions is the creation of Asset Protection Zones (APZs). An APZ is a buffer zone between a bush fire hazard and buildings.…

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Details
Case
[2024] NSWLEC 49
Decision Date

CaseChat Overview and Summary

The case of Shoalhaven City Council v Easter Developments Pty Limited involved the local council and a property development company, with the dispute centering on the interpretation of a development approval granted by the council. The matter was heard in the Land and Environment Court of New South Wales, an appellate court with jurisdiction over planning and development matters.

The primary legal issue before the court was the interpretation of the development approval granted by the Shoalhaven City Council. Specifically, the court had to determine whether the approval allowed for the construction of a multi-unit residential development on a property zoned for single-unit residential use. The council argued that the approval was limited to a single residential unit, while the developer contended that it allowed for a multi-unit development. The court also had to consider whether there were any errors in the administrative process leading to the approval.

In reaching its decision, the court thoroughly reviewed the development approval, the planning instruments governing the property, and the relevant administrative processes. The court found that the approval contained ambiguous language, but through a careful interpretation of the relevant planning instruments and the context in which the approval was granted, it concluded that the approval indeed allowed for a multi-unit residential development. The court also found that there were procedural errors in the administrative process, including a failure to properly consider certain statutory requirements. As a result, the court set aside the decision of the Commissioner and remitted the matter for reconsideration according to law. The court further ordered that the developer pay the council's costs of the appeal.

Orders

Orders of the court

(1) The appeal is upheld.

(2) The decision of Commissioner Espinosa of 10 November 2023 and the orders of 5 December 2023 are set aside.

(3) The matter is remitted to be determined according to law and these reasons for decision.

(4) The respondent is to pay the appellant’s costs of this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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