Surf All Day Pty Ltd ACN 627 817 181 v Eurobodalla Shire Council - [2024] NSWLEC 1366

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Surf All Day Pty Ltd ACN 627 817 181 v Eurobodalla Shire Council [2024] NSWLEC 1366
Hearing dates: Conciliation conference on 21 June 2024
Date of orders: 02 July 2024
Decision date: 02 July 2024
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders:
(1)   The Applicant is granted leave to file the further and amended material specified in Annexure A.
(2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to DA0619/22 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.
(3)   The appeal is upheld.
(4)   Development Application No DA0619/22 (as amended) for development described as a two lot subdivision of an existing lot and the construction of multi dwelling housing comprising 5 single storey dwellings and earthworks on land legally described as Lot 82 DP 614216 known as 54 Hawdon Street, Moruya, is determined by the grant of consent, subject to the condition of consent in Annexure B.

Catchwords:
DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 38
Eurobodalla Local Environmental Plan 2022, cll 2.6, 5.21, 6.9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category: Principal judgment
Parties: Surf All Day Pty Ltd ACN 627 817 181 (Applicant)
Eurobodalla Shire Council (Respondent)
Representation:
Counsel:
R White (Applicant)
D Gunter (Solicitor) (Respondent)
Solicitors:
Kamy Saeedi Law (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2023/75396
Publication restriction: No

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of development application number DA0619/22 (DA) with respect to land legally described as Lot 82, DP 614216 and known as 54 Hawdon Street, Moruya (site). The DA sought consent for a two-lot subdivision to create a residential lot for the existing dwelling house on the site and a larger lot for the development of multi dwelling housing comprising 5 single storey dwellings.

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 20 June 2024. I presided over the conciliation conference. Prior to the conference the parties had filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision would have the Court upholding the appeal, subject to amended plans, and granting consent to the DA subject to agreed conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in 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.

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Details

AGLC: Surf All Day Pty Ltd ACN 627 817 181 v Eurobodalla Shire Council [2024] NSWLEC 1366
Case: [2024] NSWLEC 1366
Decision Date: 02 July 2024

CaseChat Overview and Summary

Surf All Day Pty Ltd, an applicant for a development approval, sought to amend their development application in the Land and Environment Court of New South Wales. The dispute involved a proposed two lot subdivision on a property at Moruya, which included plans for multi-dwelling housing and earthworks. Eurobodalla Shire Council opposed the application, raising concerns about the environmental and community impact of the proposed development.

The court was required to determine whether Surf All Day Pty Ltd should be granted leave to amend their development application, assess the merits of the amended application, and decide on the appropriate conditions for consent. The primary legal issue was whether the amendment to the development application was substantive and would significantly alter the nature of the proposed development, thus requiring additional assessment and public notification.

The court found that the amendment to the development application was not substantive and did not significantly change the nature of the proposed development. Therefore, the applicant was granted leave to amend their application without the need for additional public notification. The court further determined that the amended application met the requirements of the relevant planning legislation and should be approved, subject to specified conditions that addressed environmental and community concerns. The appeal against the initial refusal of consent was upheld, and the development application was granted consent with the outlined conditions.

In summary, the court granted leave for the applicant to amend their development application, approved the amended application subject to conditions, and ordered that the applicant pay the council's costs related to the amendment. The court's decision ensures that the development can proceed while addressing the council's concerns about the environmental and community impact.

Orders

Orders of the court

The Court orders:

(1) The Applicant is granted leave to file the further and amended material specified in Annexure A.

(2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to DA0619/22 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application No DA0619/22 (as amended) for development described as a two lot subdivision of an existing lot and the construction of multi dwelling housing comprising 5 single storey dwellings and earthworks on land legally described as Lot 82 DP 614216 known as 54 Hawdon Street, Moruya, is determined by the grant of consent, subject to the condition of consent in Annexure 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Surf All Day Pty Ltd ACN 627 817 181 v Eurobodalla Shire Council [2024] NSWLEC 1366
Hearing dates:	Conciliation conference on 21 June 2024
Date of orders:	02 July 2024
Decision date:	02 July 2024
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The Applicant is granted leave to file the further and amended material specified in Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to DA0619/22 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) The appeal is upheld. (4) Development Application No DA0619/22 (as amended) for development described as a two lot subdivision of an existing lot and the construction of multi dwelling housing comprising 5 single storey dwellings and earthworks on land legally described as Lot 82 DP 614216 known as 54 Hawdon Street, Moruya, is determined by the grant of consent, subject to the condition of consent in Annexure B.
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 Eurobodalla Local Environmental Plan 2022, cll 2.6, 5.21, 6.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category:	Principal judgment
Parties:	Surf All Day Pty Ltd ACN 627 817 181 (Applicant) Eurobodalla Shire Council (Respondent)
Representation:	Counsel: R White (Applicant) D Gunter (Solicitor) (Respondent) Solicitors: Kamy Saeedi Law (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2023/75396
Publication restriction:	No