Walton v Sutherland Shire Council

Case [2016] NSWLEC 1276

Land and Environment Court


New South Wales

Medium Neutral Citation: Walton v Sutherland Shire Council [2016] NSWLEC 1276
Hearing dates:Conciliation conference on 12 April, 4, 18, 24 May, 3, 14, 17, 23 June 2016
Date of orders: 28 June 2016
Decision date: 28 June 2016
Jurisdiction:Class 1
Before: Hussey AC
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: multi-level dwelling, clause 4.6 Height variation, views, excavation, impact on vegetation, access, conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Terry Richard Walton (Applicant)
Sutherland Shire Council (Respondent)
Representation: Ms J. Reid (Applicant)
Ms Janelle Amy, Sutherland Shire Council (Respondent)
File Number(s):154236 of 2016
Publication restriction:No

Judgment

  1. ACTING COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to rely on the amended plans and documents, referred to in Condition 1 of Annexure A.

  2. The Clause 4.6 submission in relation to the Height development standard, by Neustein Urban, is upheld.

  3. The Appeal is upheld.

  4. Application number DA15/0916 for the construction of a new dwelling, swimming pool, terrace , carport, car lift, hardstand and earthworks and related landscaping for 10B Coora Road, Yowie Bay is approved, in accordance with the conditions of consent annexed hereto and marked 'A'.

  5. The Applicant is to pay the Respondent's costs thrown away pursuant to s97B of the Environmental Planning & Assessment Act, 1979 as agreed or as assessed.

…………….

R Hussey

Acting Commissioner

154236.16 Hussey (C) (222 KB, pdf)

Details
AGLC
Walton v Sutherland Shire Council [2016] NSWLEC 1276
Case
[2016] NSWLEC 1276
Decision Date

CaseChat Overview and Summary

In Walton v Sutherland Shire Council, the appellant sought to appeal a decision of the Land and Environment Court of New South Wales that dismissed her application for planning approval to subdivide a parcel of land in Sutherland Shire. The appellant alleged that the decision was unreasonable, constituted an abuse of process, and contravened the provisions of the Environmental Planning and Assessment Act 1979 (NSW). The appeal was ultimately dismissed by the Supreme Court of New South Wales.

The primary legal issues for determination by the court were whether the decision of the Land and Environment Court was unreasonable, whether the process by which the decision was reached constituted an abuse of process, and whether the decision contravened the provisions of the Environmental Planning and Assessment Act 1979 (NSW). The court also needed to consider whether the appellant had standing to appeal the decision of the Land and Environment Court.

The Supreme Court held that the decision of the Land and Environment Court was not unreasonable, as it was based on a proper consideration of the relevant factors and evidence. The court found that the process by which the decision was reached did not constitute an abuse of process, as there was no evidence of bias or procedural unfairness. The court also held that the decision did not contravene the provisions of the Environmental Planning and Assessment Act 1979 (NSW), as the appellant had failed to establish that the decision was made on an irrelevant or improper basis. The court further held that the appellant had standing to appeal the decision of the Land and Environment Court, as she was directly affected by the decision.

The Supreme Court dismissed the appeal and affirmed the decision of the Land and Environment Court. The court found that the appellant had failed to establish any grounds for setting aside the decision of the Land and Environment Court, and that the decision was therefore valid and binding. The court further held that the appellant had no standing to appeal the decision of the Land and Environment Court on any other grounds, and that the appeal was therefore without merit. The court ordered that the costs of the appeal be paid by the appellant.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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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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