Westport Marina Developments Pty Ltd v Concord Council - [2000] NSWLEC 184

Land and Environment Court

of New South Wales

CITATION: Westport Marina Developments Pty Ltd v Concord Council [2000] NSWLEC 184

PARTIES:
APPLICANT
Westport Marina Developments Pty Ltd
RESPONDENT
Concord Council

FILE NUMBER(S): 10122 of 2000

CORAM: Pearlman J

KEY ISSUES: Section 56A Appeal :- error of law - owner's consent - whether designated development - failure to give reasons

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 78A(8)(a), s 79C, s 111, s 112
Environmental Planning and Assessment Regulation 1994 s 46(1)(b), sch 3
Land and Environment Court Act 1979 s 39(2), s 56A

CASES CITED: Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367;
Byron Shire Businesses for the Future Inc v Byron Council and Anor (1994) 84 LGERA 434;
Drummoyne Municipal Council v Maritime Services Board and Ors (1991) 72 LGRA 186;
Mifsud v Campbell (1990) 21 NSWLR 725;
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470;
Prineas v Forestry Commission of New South Wales and Ors (1983) 49 LGRA 403;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303

DATES OF HEARING: 08/08/00

DATE OF JUDGMENT:
08/24/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr J J Bingham (Solicitor)
SOLICITORS
Deacons
RESPONDENT
Mr W R Davison SC
SOLICITORS
David M Carson

JUDGMENT:

IN THE LAND AND

10122 of 2000

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 24 August 2000

WESTPORT MARINA DEVELOPMENTS PTY LTD

Applicant

CONCORD COUNCIL

Respondent

JUDGMENT

Introduction

1. This appeal relates to the Westport Marina off Cabarita Point.

2. Concord Council appeals under s 56A of the Land and Environment Court Act 1979 against the decision of Senior Commissioner Jensen, who granted development consent subject to conditions to alterations and additions to the marina.

3. The proposed development was to convert 44 swing moorings into 44 floating berths, increasing the number of berths at the marina from 72 to 116. Initially it was proposed that, of the 44 floating berths, two would accommodate boat lengths of 60 metres, and four would accommodate boat lengths of 45 metres. During the hearing before the Senior Commissioner, an amendment was sought and granted, which proposed instead that four berths would accommodate boat lengths of 35 metres and two berths would accommodate boat lengths of 45 metres. The remainder of the berths were designed to accommodate smaller boats. The amendment was set out in a plan which became exhibit ‘V’.

4. Another important amendment was made by leave of the Court at the second callover of the proceedings. That amendment was to confine the development the subject of the development application to land below the high water mark, and to exclude from the development the subject of the development application any land above the high water mark.

The grounds of appeal

5. The council seeks an order that the Senior Commissioner’s decision be set aside upon the following grounds:

(1) Having found “it is quite clear that the development…

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: [2000] NSWLEC 184
Decision Date: 08/24/2000

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal from Concord Council against the decision of Senior Commissioner Jensen, who had granted development consent to Westport Marina Developments Pty Ltd for alterations and additions to the marina, specifically the conversion of 44 swing moorings into 44 floating berths. Concord Council's appeal focused on two legal errors allegedly made by the Senior Commissioner: the requirement for owner's consent and the classification of the development as designated development necessitating an environmental impact statement.

The court examined whether the Senior Commissioner correctly determined that owner's consent was not required for the development. It found that, while the Senior Commissioner erred in his understanding of the necessary consent, this factual error did not result in a legal error since the consent of the relevant owner, the Waterways Authority, had already been obtained, and the development consent was limited to the land below the high water mark.

The more significant issue was whether the Senior Commissioner correctly assessed if the proposed development was designated development, which would have required an environmental impact statement. The court held that the Senior Commissioner failed to provide reasons for his conclusion that the development did not significantly increase environmental impacts, a critical legal error. The court found that without these reasons, it could not be determined if the proposed development met the criteria for designated development under the Environmental Planning and Assessment Regulation 1994.

Consequently, the court upheld the appeal, set aside the Senior Commissioner's decision, and remitted the proceedings for reconsideration. The court emphasized that the Senior Commissioner must now provide detailed reasons for determining whether the proposed alterations and additions significantly increase the environmental impacts of the total development. The formal orders included setting aside the previous determination, reserving the question of costs, and instructing that the exhibits remain on file pending further proceedings.

Orders