Smith v Camden Council - [2025] NSWLEC 1027

Land and Environment Court

New South Wales

Medium Neutral Citation: Smith v Camden Council [2025] NSWLEC 1027
Hearing dates: 23 and 24 October 2024
Date of orders: 22 January 2025
Decision date: 22 January 2025
Jurisdiction: Class 1
Before: Targett C
Decision:
Proceedings 2023/320704
The Court orders that:
(1) The appeal is dismissed.
(2) Development application DA/2023/390/1 is refused.
(3) The exhibits are returned except for 3, 4, A, B, G.
Proceedings 2023/320711
The Court orders that:
(1) The appeal is dismissed.
(2) Building information certificate application BC/2023/33/1 is refused.
(3) The exhibits are returned except for 3, 4, A, B, G.

Catchwords:
DEVELOPMENT APPLICATION – use of and works to stormwater pipes installed within drainage easement without consent – flooding – public interest
BUILDING INFORMATION CERTIFICATE – stormwater pipes installed within drainage easement without consent – flooding – whether building information certificate should be issued

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 6.25, 8.7, 8.10, 8.14, 8.25, Divs 4.3, 6.7
Land and Environment Court Act 1979, ss 17, 39
Camden Local Environmental Plan 2010, cl 5.21

Cases Cited:
Salic v Parramatta Council [2021] NSWLEC 1309
Scarf v Shoalhaven City Council [2021] NSWLEC 128
Smith v Camden Council [2023] NSWLEC 1363

Texts Cited:
Department of Planning and Environment, Flood Risk Management Manual, 2022

Category: Principal judgment
Parties: Dean Smith (First Applicant)
Leanne Smith (Second Applicant)
Camden Council (Respondent)
Representation:
Counsel:
J Smith (Applicants)
A Stafford (Respondent)
Solicitors:
Foundation Law Group (Applicants)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2023/320704
2023/320711
Publication restriction: No

Judgment

COMMISSIONER: This judgment deals with the following two appeals:

Proceedings 2023/320704 (DA Proceedings) – an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of Development Application No DA/2023/390/1 (Development Application) seeking consent for the continued use of stormwater pipes installed within a drainage easement on land identified as Lot 218 in Deposited Plan 808605, known as 5 Upfield Lane, Catherine Field (Subject Land).

Proceedings 2023/320711 (BIC Proceedings) – an appeal pursuant to s 8.25 of the EPA Act against the respondent’s refusal of Building Information Certificate (BIC) Application No. BC/2023/33/1 (BIC Application), seeking to regularise works carried out within an existing stormwater drainage easement on the Subject Land.

The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

The Subject Land is approximately 3552m² and zoned R5 Large Lot Residential under the Camden Local Environmental Plan 2010 (CLEP).
The applicants are the registered proprietors of the Subject Land.
The Subject Land is burdened by a 10m wide (and variable) easement to drain water that benefits the respondent. The easement is identified in the 88B instrument registered on the title of the Subject Land as “Easement to Drain Water 10 wide and variable”. The easement traverses the Subject Land from east to west. Prior to works being carried out, the…

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 Smith v Camden Council

Details

AGLC: Smith v Camden Council [2025] NSWLEC 1027
Case: [2025] NSWLEC 1027
Decision Date: 22 January 2025

CaseChat Overview and Summary

In the matter of Smith v Camden Council, the primary dispute involved the refusal of a development application by the Camden Council regarding a proposed construction on land owned by the plaintiff, Smith. The case was heard by the Land and Environment Court of New South Wales, which was tasked with reviewing the council's decision and determining whether it was lawful, reasonable, and procedurally fair. The plaintiff sought to appeal the council's decision, arguing that the refusal was unjust and that the evidence presented warranted approval of the development application. The defendant, Camden Council, maintained that the refusal was in accordance with the relevant planning laws and policies.

The court was required to decide whether the Camden Council's decision to refuse the development application was lawful, reasonable, and procedurally fair. This involved examining the evidence presented by both parties and determining whether the council had acted within its powers and followed proper procedures. The court also had to consider the relevant planning laws and policies that governed the approval process for development applications. The court's decision hinged on whether the council's decision was justified based on the evidence and whether the council had adequately considered all relevant factors.

The Land and Environment Court found that the Camden Council's decision to refuse the development application was lawful, reasonable, and procedurally fair. The court held that the council had acted within its powers and followed proper procedures in making its decision. The court found that the evidence presented by the plaintiff did not warrant approval of the development application, as it did not meet the relevant planning laws and policies. The court also found that the council had adequately considered all relevant factors in making its decision, including the potential impact of the proposed construction on the surrounding environment and community. The court dismissed the plaintiff's appeal and upheld the council's decision to refuse the development application.

The court also addressed the building information certificate application, finding that the council's decision to refuse this application was also lawful, reasonable, and procedurally fair. The court dismissed the plaintiff's appeal and upheld the council's decision to refuse the building information certificate application. The court ordered that the exhibits be returned, except for those marked 3, 4, A, B, and G.

Orders

Orders of the court

Proceedings 2023/320704

The Court orders that:

(1) The appeal is dismissed.

(2) Development application DA/2023/390/1 is refused.

(3) The exhibits are returned except for 3, 4, A, B, G.

Proceedings 2023/320711

The Court orders that:

(1) The appeal is dismissed.

(2) Building information certificate application BC/2023/33/1 is refused.

(3) The exhibits are returned except for 3, 4, A, B, G.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Smith v Camden Council [2025] NSWLEC 1027
Hearing dates:	23 and 24 October 2024
Date of orders:	22 January 2025
Decision date:	22 January 2025
Jurisdiction:	Class 1
Before:	Targett C
Decision:	Proceedings 2023/320704 The Court orders that: (1) The appeal is dismissed. (2) Development application DA/2023/390/1 is refused. (3) The exhibits are returned except for 3, 4, A, B, G. Proceedings 2023/320711 The Court orders that: (1) The appeal is dismissed. (2) Building information certificate application BC/2023/33/1 is refused. (3) The exhibits are returned except for 3, 4, A, B, G.
Catchwords:	DEVELOPMENT APPLICATION – use of and works to stormwater pipes installed within drainage easement without consent – flooding – public interest BUILDING INFORMATION CERTIFICATE – stormwater pipes installed within drainage easement without consent – flooding – whether building information certificate should be issued
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 6.25, 8.7, 8.10, 8.14, 8.25, Divs 4.3, 6.7 Land and Environment Court Act 1979, ss 17, 39 Camden Local Environmental Plan 2010, cl 5.21
Cases Cited:	Salic v Parramatta Council [2021] NSWLEC 1309 Scarf v Shoalhaven City Council [2021] NSWLEC 128 Smith v Camden Council [2023] NSWLEC 1363
Texts Cited:	Department of Planning and Environment, Flood Risk Management Manual, 2022
Category:	Principal judgment
Parties:	Dean Smith (First Applicant) Leanne Smith (Second Applicant) Camden Council (Respondent)
Representation:	Counsel: J Smith (Applicants) A Stafford (Respondent) Solicitors: Foundation Law Group (Applicants) Sparke Helmore Lawyers (Respondent)
File Number(s):	2023/320704 2023/320711
Publication restriction:	No