Stock v Wingecarribee Shire Council - [2021] NSWLEC 1066

Land and Environment Court

New South Wales

Medium Neutral Citation: Stock v Wingecarribee Shire Council [2021] NSWLEC 1066
Hearing dates: 4-5 February 2021
Date of orders: 16 February 2021
Decision date: 16 February 2021
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No. 20/0623 for the construction of a building described as a secondary dwelling at 506 Greenhills Road, Werai, is refused.
(3) The exhibits, other than Exhibits 1, A and C, are returned.

Catchwords:
DEVELOPMENT APPLICATION – secondary dwelling – characterisation of secondary dwelling – permissible development – location of the secondary dwelling would result in an adverse impact of the character of the rural area

Legislation Cited:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy No 44—Koala Habitat Protection
State Environmental Planning Policy No 55—Remediation of Land
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011
Wingecarribee Local Environmental Plan 2010

Cases Cited:
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190
Loccisano v Hornsby Shire Council [1996] NSWLEC 122
Parsons v Hornsby Council [1995] NSWLEC 69
Sweeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189

Texts Cited:
Macquarie Dictionary (7th ed)
Macquarie Dictionary (Online Edition)
Wingecarribee Shire Rural Lands Development Control Plan 2010

Category: Principal judgment
Parties: Jenny Stock (Applicant)
Wingecarribee Shire Council (Respondent)
Representation:
Counsel:
P Vergotis (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2020/185882
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 20/0623 for the construction of a secondary dwelling (the proposal) at 506 Greenhills Road, Werai (the site) by Wingecarribee Shire Council (the Council).
The hearing commenced with a view of the site in the company of the parties and their experts. The view included observing the site from a distant location to the north of the site. During the site view, the Council expressed a view that the proposal would be characterised as a secondary dwelling if the proposed location was changed to a position on the hill between the principal dwelling and the equine facilities.
The hearing was conducted thereafter via MS Teams.
The applicant sought an adjournment of the hearing on the first day for an opportunity to provide information to enable an assessment of the proposed vehicular access to the secondary dwelling and vegetation clearing. The Council opposed the adjournment on the bases that the applicant was put on notice of the issue of a lack of information regarding the vehicular access to the secondary dwelling as early as 28 November 2019 (Ex 3, tab 2) and…

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: [2021] NSWLEC 1066
Decision Date: 16 February 2021

CaseChat Overview and Summary

The appeal was brought by the Stock family against the Wingecarribee Shire Council, challenging the Council's decision to refuse their development application for a secondary dwelling at their property on Greenhills Road in Werai. The case was heard in the Land and Environment Court of New South Wales. The Stocks sought to construct a secondary dwelling on their property, which was zoned for rural living, and were denied by the Council, citing concerns about the impact on the local environment and the character of the area.

The primary legal issue before the Court was whether the refusal of the development application was lawful and whether it complied with the relevant planning legislation and policies. The Court needed to consider the evidence presented by both parties and determine whether the Council's decision was based on valid grounds and was in accordance with the law. The Court also had to assess whether the Council's decision was unreasonable or had been made in error.

In its judgment, the Court found that the Wingecarribee Shire Council's decision to refuse the development application was lawful and appropriately exercised. The Court accepted the Council's evidence and reasoning that the proposed secondary dwelling would not be compatible with the rural character of the area and would have adverse environmental impacts. The Court was satisfied that the decision was based on proper consideration of the relevant planning policies and evidence, and thus the appeal was dismissed. The Court also upheld the refusal of Development Application No. 20/0623 for the construction of the secondary dwelling.

Orders

Orders of the court

The Orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. 20/0623 for the construction of a building described as a secondary dwelling at 506 Greenhills Road, Werai, is refused.

(3) The exhibits, other than Exhibits 1, A and C, are returned.

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:	Stock v Wingecarribee Shire Council [2021] NSWLEC 1066
Hearing dates:	4-5 February 2021
Date of orders:	16 February 2021
Decision date:	16 February 2021
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 20/0623 for the construction of a building described as a secondary dwelling at 506 Greenhills Road, Werai, is refused. (3) The exhibits, other than Exhibits 1, A and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION – secondary dwelling – characterisation of secondary dwelling – permissible development – location of the secondary dwelling would result in an adverse impact of the character of the rural area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy No 44—Koala Habitat Protection State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Wingecarribee Local Environmental Plan 2010
Cases Cited:	Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 Loccisano v Hornsby Shire Council [1996] NSWLEC 122 Parsons v Hornsby Council [1995] NSWLEC 69 Sweeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189
Texts Cited:	Macquarie Dictionary (7th ed) Macquarie Dictionary (Online Edition) Wingecarribee Shire Rural Lands Development Control Plan 2010
Category:	Principal judgment
Parties:	Jenny Stock (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: P Vergotis (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: McCabe Curwood Pty Ltd (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2020/185882
Publication restriction:	Nil