Warnes v Muswellbrook Shire Council - [2010] NSWLEC 19

Land and Environment Court

of New South Wales

CITATION: Warnes v Muswellbrook Shire Council [2010] NSWLEC 19

PARTIES: APPELLANT
Garry Warnes
RESPONDENT
Muswellbrook Shire Council

FILE NUMBER(S): 10680 of 2009

CORAM: Pain J

KEY ISSUES: APPEAL :- whether commissioner erred in law in interpretation of LEP - meaning of "require" in LEP - does "require" mean "necessity" - no error of law found

LEGISLATION CITED: Freedom of Information Act 1982 (Vic)
Interpretation Act 1987 s 33
Land and Environment Court Act 1979 s 56A
Muswellbrook Local Environmental Plan 1985 cl 8, cl 18

CASES CITED: Department of Premier and Cabinet v Hulls [1999] 3 VR 331
Sutherland Shire Council v Telope Pty Ltd (1994) 85 LGERA 103
Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284

DATES OF HEARING: 1 February 2010

EX TEMPORE JUDGMENT DATE: 1 February 2010

LEGAL REPRESENTATIVES: APPELLANT
Mr P Clay
SOLICITOR
Thompson Norrie
RESPONDENT
Mr T Robertson SC
SOLICITOR
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

1 February 2010

10680 of 2009 Warnes v Muswellbrook Shire Council
EX TEMPORE JUDGMENT

1 Her Honour: This is a s 56A appeal under the Land and Environment Court Act 1979 (the Court Act) against a decision of the Senior Commissioner in Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284 in matter no 08/11287 handed down on 26 August 2009. The Senior Commissioner held that the Appellant’s s 97 appeal against the refusal of development consent by Muswellbrook Shire Council (the Council) should be dismissed as the proposed accommodation for construction workers near Muswellbrook did not comply with objective (b) of the (Urban Buffer) Zone (the L2 zone) in the Muswellbrook Local Environmental Plan 1985 (the LEP). That zone is an environmental protection urban buffer zone along the southern and eastern sides of Muswellbrook. The construction workers are to build coal mine infrastructure in the Upper Hunter Valley. Fourteen buildings to house 400 workers were proposed.

2 Under cl 8 of the LEP, the Council must not grant consent to development unless the development is consistent with the objectives of the zone where the development is proposed. The zone objectives for the L2 zone are:

(a) to establish around the town of Muswellbrook a protective buffer of an essentially rural character, which will separate the town from future surface mining activity outside the zone and require additional protective measures in the event of expansion of existing mines within the buffer,

(b) to accommodate development of a rural character or associated with rural uses, or development which requires a location close to the town of Muswellbrook, provided that development will not adversely affect other development within Muswellbrook or within this zone, and will not be adversely affected itself by mining development outside the buffer,

(c) to enable the future construction of a railway and a highway deviation, and to ensure that development does not foreclose these options, and

(d) to encourage development that will provide or maintain an appropriate rural setting for 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

Case: [2010] NSWLEC 19
Decision Date: 1 February 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the appellant Garry Warnes brought an appeal against the Muswellbrook Shire Council’s refusal to grant development consent for a proposed accommodation facility for construction workers near Muswellbrook. The facility was intended to house 400 workers involved in coal mine infrastructure projects in the Upper Hunter Valley. The Senior Commissioner dismissed the appellant’s appeal, finding that the proposed development did not comply with objective (b) of the Urban Buffer Zone in the Muswellbrook Local Environmental Plan 1985, which requires development to be of a rural character or associated with rural uses and not adversely affect other development within Muswellbrook or the zone.

The legal issues in this case revolved around the interpretation of the term "require" in objective (b) of the Urban Buffer Zone, specifically whether it meant "necessity" or simply "need." The appellant argued that the Senior Commissioner erred in law by misinterpreting the term "require" and should have considered whether the development required a location close to Muswellbrook rather than any town. The council contended that the Senior Commissioner’s interpretation of "require" was correct and consistent with the objectives of the L2 zone.

The court found that the Senior Commissioner’s approach to interpreting "require" was appropriate in the context of the LEP and the objectives of the L2 zone. The court concluded that the Senior Commissioner did not commit an error of law in his interpretation of the term "require," as his approach reflected a practical and commonsense understanding of the word. The court also found that the Senior Commissioner’s consideration of other towns within reasonable proximity to the proposed development was consistent with the objectives of the LEP. The court dismissed the appeal and ordered the appellant to pay the council’s costs of the appeal.

Orders