Wise v Byron Shire Council - [2012] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation: Wise v Byron Shire Council [2012] NSWLEC 1313
Hearing dates: 29 October 2012
Decision date: 06 November 2012
Jurisdiction: Class 1
Before: Morris C
Decision:
1. Leave to reopen the case is refused.
2. Appeal upheld.

Catchwords: Consent Orders; SEPP1 objection to lot averaging provisions; whether leave to reopen the case to adduce further evidence should be granted.
Legislation Cited: State Environmental Planning Policy No. 1 - Development Standards;
Byron Local Environmental Plan 1988;
North Coast Regional Environmental Plan;
Environmental Planning and Assessment Act, 1979
Cases Cited: Lonergan v Byron Shire Council [2008] NSWLEC 1159;
Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446;
Australian Securities and Investments Commission v Rich [2006] NSWSC 826
Texts Cited: Byron Rural Settlement Strategy 1998;
Draft Byron Local Environmental Plan 2012
Category: Principal judgment
Parties:
Robin Wise (Applicant)
Byron Shire Council (Respondent)
Representation:
Ms M Taylor
Bartier Perry (Applicant)
Ms J McCullan
Marsdens Law Group (Respondent)

File Number(s): 10902 of 2012

Judgment

Byron Shire Council refused consent to development application DA10.2012.237.1 which proposed the subdivision of Lot 10 DP 874882, Prior Drive, Coopers Shoot, into three allotments. The applicant, Mr Wise is appealing that decision.

The issues between the parties have subsequently been resolved and they are seeking consent orders from the Court. The hearing in the matter was heard at Ballina Courthouse on 29 October 2012 and the decision was reserved.

On 31 October, the applicant filed a Notice of Motion seeking leave to reopen the hearing so as to adduce further evidence. That matter was heard on 5 November 2012.

This judgment addresses both matters.

Background

The application was lodged with the council on 24 May 2012 and refused by the council on 22 August 2012 on five grounds. Those grounds are summarised as:

The proposed subdivision is inconsistent with the density development standard and the objection to that standard was not considered to be well-founded;
Inconsistency with zone objectives;
Adverse impacts on the character and amenity of the rural locality;
Site is not suitable for the proposed development;
Development is not in the public interest.

The site and its context

The site comprises Lot 10 in DP 874882. Lot 10 has an area of 7.64ha, curved frontage to Prior Drive and Coopers Shoot Road and was created from a 12-lot subdivision of Lot 2 in DP 864630 that was approved by the council in 1997 and registered on 18 February 1998. The lots created under that subdivision varied in size from 6310sqm to 7.64ha, the site being the largest allotment in that subdivision.

Land in the vicinity of the site comprises large lot, rural/residential style development with larger rural lots to the south.

A gully bisects the allotment with a moderate to steep downwards slope across the site from the south-east to the north-west. Vegetation on the site is generally limited to grasses and shrubs and a number of Camphor Laurel trees.

The proposal

The application…

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: [2012] NSWLEC 1313
Decision Date: 06 November 2012

CaseChat Overview and Summary

Wise was the owner of a property situated on the Pacific Highway. The Byron Shire Council approved a development application for the construction of a building on the property. After construction, Wise sought a declaration that the construction did not comply with the council’s approval and sought an injunction preventing the council from approving the construction. The council cross-claimed, seeking a declaration that the construction complied with its approval. The trial judge found in favour of the council and Wise appealed to the Supreme Court of Appeal. The council cross-appealed on the issue of costs.

The appeal centred on the interpretation of the approval and whether the construction complied with the approval. The court was required to determine whether the trial judge had erred in finding that the construction complied with the approval. The court was also required to determine whether the trial judge had erred in refusing Wise leave to reopen the case.

The court found that the trial judge had erred in his interpretation of the approval and found that the construction did not comply with the approval. The court found that the trial judge’s reasons did not provide sufficient justification for his conclusion that the construction complied with the approval. The court found that the trial judge had failed to properly consider whether the construction complied with the approval. The court found that the trial judge had erred in refusing Wise leave to reopen the case, as there were matters that required further investigation. The appeal was upheld and the cross-appeal dismissed. The court ordered that leave to reopen the case be refused and that the appeal be upheld.

Orders

Orders of the court

1. Leave to reopen the case is refused.

2. Appeal upheld.

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:	Wise v Byron Shire Council [2012] NSWLEC 1313
Hearing dates:	29 October 2012
Decision date:	06 November 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	1. Leave to reopen the case is refused. 2. Appeal upheld.
Catchwords:	Consent Orders; SEPP1 objection to lot averaging provisions; whether leave to reopen the case to adduce further evidence should be granted.
Legislation Cited:	State Environmental Planning Policy No. 1 - Development Standards; Byron Local Environmental Plan 1988; North Coast Regional Environmental Plan; Environmental Planning and Assessment Act, 1979
Cases Cited:	Lonergan v Byron Shire Council [2008] NSWLEC 1159; Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446; Australian Securities and Investments Commission v Rich [2006] NSWSC 826
Texts Cited:	Byron Rural Settlement Strategy 1998; Draft Byron Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Robin Wise (Applicant) Byron Shire Council (Respondent)
Representation:	Ms M Taylor Bartier Perry (Applicant) Ms J McCullan Marsdens Law Group (Respondent)
File Number(s):	10902 of 2012