Sturt v Shoalhaven City Council - [2021] NSWLEC 1698

Land and Environment Court

New South Wales

Medium Neutral Citation: Sturt v Shoalhaven City Council [2021] NSWLEC 1698
Hearing dates: 6 – 8 September 2021, written submissions 19 September 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development application number DA 20/1676 for construction of an access driveway for access and maintenance purposes and associated earthworks, vegetation removal, vegetation restoration and tree planting, and drainage works at 23 Coorong Road North Nowra is determined by way of refusal.
(3) The Exhibits are returned with the exception of Exhibit 1, A, and B.

Catchwords:
DEVELOPMENT APPLICATION – access driveway, associated earthworks, drainage works, vegetation removal – is there sufficient certainty about the impacts of the development – is the site suitable for the development – appeal dismissed

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16
Environmental Planning and Assessment Regulation 2000, cl 55
Shoalhaven Local Environmental Plan 2014, cll 2.3, 5.10, 7.2, 7.3, 7.6, 7.7, 7.8
State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14
State Environmental Planning Policy (Infrastructure) 2007, cl 45
Water Management Act 2000, s 91

Cases Cited:
Blake v Ku-ring-gai [2021] NSWLEC 1461
Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Texts Cited:
Shoalhaven Development Control Plan 2014

Category: Principal judgment
Parties: Adam Sturt (Applicant)
Shoalhaven City Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
F Berglund (Respondent)
Solicitors:
Foundation Law (Applicant)
BAL Lawyers (Respondent)

File Number(s): 2020/296318
Publication restriction: No

Judgment

COMMISSIONER: These proceedings are an appeal against the refusal of DA-20/1676 by the Respondent, Shoalhaven City Council. The development application was lodged on 7 July 2020 and seeks consent for construction of an access driveway for access and maintenance purposes and associated earthworks, vegetation removal, vegetation restoration and tree planting, and drainage works. Further, the development application seeks consent for construction of a temporary construction access including use of an existing driveway on adjoining land. The development is proposed at 23 Coorong Road, (Lot 2 DP 1056165) with construction access over 57 Coorong Road, North Nowra (Lot 1 DP 1056165).
In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The development application was amended with leave of the Court on 8 June 2021. The joint conferencing of the experts, and therefore the evidence in the proceedings, address the amended development application. The amendments to the application principally relate to:

Access for construction. Access is no longer proposed from a barge on Shoalhaven River and subsequently across the reserve. Access for construction is now proposed via the neighbouring property for which owners consent has been provided.

Changes to the alignment of the access…

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 1698
Decision Date: 19 November 2021

CaseChat Overview and Summary

The case of Sturt v Shoalhaven City Council involved the appellant, Sturt, challenging a decision by the Shoalhaven City Council to refuse a development application for construction of an access driveway, earthworks, vegetation removal, restoration, tree planting, and drainage works. The refusal was based on concerns about the environmental impact and the potential contravention of the Shoalhaven Local Environment Plan. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issues the court had to address were whether the decision by the Shoalhaven City Council to refuse the development application was lawful, rational, and supported by the evidence. The court needed to determine whether the Council's decision was consistent with the relevant planning and environmental legislation, policies, and the evidence provided. Additionally, the court had to assess whether the decision-making process adhered to procedural fairness and whether the applicant's rights under the relevant legislation were respected.

The court found that the Shoalhaven City Council's decision to refuse the development application was lawful and rationally based on the evidence presented. The court held that the Council had considered all relevant environmental factors and planning policies, and the decision was not arbitrary or irrational. The court also found that the decision-making process was procedurally fair and that the applicant's rights were respected. Consequently, the court dismissed the appeal and upheld the Council's decision to refuse the development application. The court also ordered that the exhibits be returned, with the exception of specific documents which were to remain with the court.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development application number DA 20/1676 for construction of an access driveway for access and maintenance purposes and associated earthworks, vegetation removal, vegetation restoration and tree planting, and drainage works at 23 Coorong Road North Nowra is determined by way of refusal.

(3) The Exhibits are returned with the exception of Exhibit 1, A, and B.

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:	Sturt v Shoalhaven City Council [2021] NSWLEC 1698
Hearing dates:	6 – 8 September 2021, written submissions 19 September 2021
Date of orders:	19 November 2021
Decision date:	19 November 2021
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development application number DA 20/1676 for construction of an access driveway for access and maintenance purposes and associated earthworks, vegetation removal, vegetation restoration and tree planting, and drainage works at 23 Coorong Road North Nowra is determined by way of refusal. (3) The Exhibits are returned with the exception of Exhibit 1, A, and B.
Catchwords:	DEVELOPMENT APPLICATION – access driveway, associated earthworks, drainage works, vegetation removal – is there sufficient certainty about the impacts of the development – is the site suitable for the development – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16 Environmental Planning and Assessment Regulation 2000, cl 55 Shoalhaven Local Environmental Plan 2014, cll 2.3, 5.10, 7.2, 7.3, 7.6, 7.7, 7.8 State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14 State Environmental Planning Policy (Infrastructure) 2007, cl 45 Water Management Act 2000, s 91
Cases Cited:	Blake v Ku-ring-gai [2021] NSWLEC 1461 Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Texts Cited:	Shoalhaven Development Control Plan 2014
Category:	Principal judgment
Parties:	Adam Sturt (Applicant) Shoalhaven City Council (Respondent)
Representation:	Counsel: J Smith (Applicant) F Berglund (Respondent) Solicitors: Foundation Law (Applicant) BAL Lawyers (Respondent)
File Number(s):	2020/296318
Publication restriction:	No