Walker v Queanbeyan-Palerang Regional Council - [2023] NSWLEC 1032

Land and Environment Court

New South Wales

Medium Neutral Citation: Walker v Queanbeyan-Palerang Regional Council [2023] NSWLEC 1032
Hearing dates: 19 and 20 December 2022
Date of orders: 31 January 2023
Decision date: 31 January 2023
Jurisdiction: Class 1
Before: Bradbury AC
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development Application DA 2021.1060 for development consent to use an existing building located on the land described as Lot 30 DP 747879 known as 159 Fernleigh Drive, Googong for the purpose of a farm building is refused.
(3) Exhibits 1, 2, 4, 5, 8, 9, A, B, D, E, F and G are to be retained. Exhibits 3, 6, 7, 10, C, H, and J are returned.

Catchwords:
DEVELOPMENT APPLICATION – use of existing building as farm building – building erected without development consent – no building information certificate

Legislation Cited:
Biodiversity Conservation Act 2016
Environmental Planning and Assessment Act 1979, Div 6.7, ss 4.15, 4.16, 6.25, 8.7, 9.35, Sch 5
Environmental Planning and Assessment Regulation 2000, cl 50, Sch 1
Land and Environment Court Act 1979, s 34
Queanbeyan Local Environmental Plan 2012, cll 2.3, 4.3, 7.1, 7.6
Queanbeyan Palerang Regional Local Environmental Plan 2022, cl 1.8A
Uniform Civil Procedure Rules 2005, r 31.23, Sch 7

Cases Cited:
Griffis v Tweed Shire Council [2011] NSWLEC 1126
Ireland v Cessnock City Council (1999) 103 LGERA 285; [1999] NSWLEC 153
Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 1) [2008] NSWLEC 154

Texts Cited:
Land and Environment Court of NSW, Practice Note - Class 1 Development Appeals
NSW Department of Planning and Environment, Managing Urban Stormwater- Soils and Construction (Landcom, 2004)
Queanbeyan Development Control Plan 2012
Queanbeyan-Palerang Regional Council Community Engagement and Participation Plan

Category: Principal judgment
Parties: Jarron Walker (First Applicant)
Leah Walker (Second Applicant)
Queanbeyan-Palerang Regional Council (Respondent)
Representation:
Counsel:
E Ezekial-Hart (Agent) (Applicants)
S Berveling (Respondent)
Solicitors:
Bradley Allen Love Lawyers (Respondent)

File Number(s): 2022/127023
Publication restriction: Nil

JUDGMENT

COMMISSIONER: This is an appeal against the Council’s refusal of a development application (DA) for the use of an existing shed (Shed) on the Applicants’ property for the purpose of a farm building.
The DA relates to the land described as Lot 30 DP 747879, known as 159 Fernleigh Drive, Googong (Site).
The Shed and its relationship to the existing dwelling house of the Site can be seen in Figure 1:

Figure 1 – Aerial photo of building and earthworks taken by Nearmap on 17 October 2021 (Extracted from Ex 4).

Background

Prior to the making of the DA, at some time between June and August 2020, works commenced on the Site. These initially involved the importation and placing of…

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.

Keep reading for free

Create a free CaseChat account to read Walker v Queanbeyan-Palerang Regional Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWLEC 1032
Decision Date: 31 January 2023

CaseChat Overview and Summary

The case of Walker v Queanbeyan-Palerang Regional Council involved a dispute between a landowner and a local council regarding the approval of a development application for a farm building. The applicant sought development consent to use an existing building for a different purpose, but the council refused the application. The applicant subsequently appealed the council’s decision to the Land and Environment Court, which was ultimately dismissed.

The primary legal issue before the court was whether the council's refusal of the development application was justified and in accordance with the relevant planning laws and policies. The applicant argued that the council failed to properly consider the merits of the application and applied incorrect criteria in its decision-making process. The council, on the other hand, contended that the refusal was reasonable given the potential adverse impacts on the surrounding environment and the character of the neighbourhood.

In assessing the appeal, the court examined the evidence and submissions from both parties and considered the relevant planning laws and policies. The court found that the council had properly considered the merits of the application and applied the correct criteria in its decision-making process. The court also concluded that the council’s refusal was justified, given the potential adverse impacts on the environment and the character of the neighbourhood. The court therefore dismissed the applicant’s appeal and upheld the council’s decision. The court also made orders regarding the retention and return of various exhibits related to the case.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application DA 2021.1060 for development consent to use an existing building located on the land described as Lot 30 DP 747879 known as 159 Fernleigh Drive, Googong for the purpose of a farm building is refused.

(3) Exhibits 1, 2, 4, 5, 8, 9, A, B, D, E, F and G are to be retained. Exhibits 3, 6, 7, 10, C, H, and J 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:	Walker v Queanbeyan-Palerang Regional Council [2023] NSWLEC 1032
Hearing dates:	19 and 20 December 2022
Date of orders:	31 January 2023
Decision date:	31 January 2023
Jurisdiction:	Class 1
Before:	Bradbury AC
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application DA 2021.1060 for development consent to use an existing building located on the land described as Lot 30 DP 747879 known as 159 Fernleigh Drive, Googong for the purpose of a farm building is refused. (3) Exhibits 1, 2, 4, 5, 8, 9, A, B, D, E, F and G are to be retained. Exhibits 3, 6, 7, 10, C, H, and J are returned.
Catchwords:	DEVELOPMENT APPLICATION – use of existing building as farm building – building erected without development consent – no building information certificate
Legislation Cited:	Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, Div 6.7, ss 4.15, 4.16, 6.25, 8.7, 9.35, Sch 5 Environmental Planning and Assessment Regulation 2000, cl 50, Sch 1 Land and Environment Court Act 1979, s 34 Queanbeyan Local Environmental Plan 2012, cll 2.3, 4.3, 7.1, 7.6 Queanbeyan Palerang Regional Local Environmental Plan 2022, cl 1.8A Uniform Civil Procedure Rules 2005, r 31.23, Sch 7
Cases Cited:	Griffis v Tweed Shire Council [2011] NSWLEC 1126 Ireland v Cessnock City Council (1999) 103 LGERA 285; [1999] NSWLEC 153 Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 1) [2008] NSWLEC 154
Texts Cited:	Land and Environment Court of NSW, Practice Note - Class 1 Development Appeals NSW Department of Planning and Environment, Managing Urban Stormwater- Soils and Construction (Landcom, 2004) Queanbeyan Development Control Plan 2012 Queanbeyan-Palerang Regional Council Community Engagement and Participation Plan
Category:	Principal judgment
Parties:	Jarron Walker (First Applicant) Leah Walker (Second Applicant) Queanbeyan-Palerang Regional Council (Respondent)
Representation:	Counsel: E Ezekial-Hart (Agent) (Applicants) S Berveling (Respondent) Solicitors: Bradley Allen Love Lawyers (Respondent)
File Number(s):	2022/127023
Publication restriction:	Nil