Yates v Blue Mountains City Council - [2013] NSWLEC 1174

Land and Environment Court

New South Wales

Medium Neutral Citation: Yates and anor v Blue Mountains City Council [2013] NSWLEC 1174
Hearing dates: 2, 27 and 28 August 2013
Decision date: 29 August 2013
Jurisdiction: Class 1
Before: Moore SC
Decision:
(1)Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicants are to pay the costs of the Council thrown away as a result of each of the two amendments to the development application, with those costs to be as agreed or assessed.
(2)The appeal is dismissed.
(3)Development application X/171/2012 seeking consent for the construction of two tennis courts on top of the existing stormwater pond and associated stormwater control works on Lots 6, 7, 8, 9, 10, 12 and 14 in Deposited Plan 1135373 is determined by the refusal of development consent.
(4)The exhibits, other than Exhibits A and 1, are returned.

Catchwords: Neutral or beneficial effect on water quality (NorBE)
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011
Blue Mountains Local Environmental Plan 2005
Cases Cited: Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45
Groeneveld v Wollongong City Council [2009] NSWLEC 149
Wehbe v Pittwater Council [2007] NSWLEC 827
Category: Principal judgment
Parties:
K Yates (First Applicant)
S Soufiamlashi (Second Applicant)
Blue Mountains City Council (Respondent)
Representation:
Mr A Pickles, barrister (Applicants)

Mr A Seton, solicitor (Respondent)
Yates Beaggi Lawyers (Applicants)
Marsdens Law Group (Respondent)

File Number(s): 10042 of 2013
Publication restriction: No

Judgment

SENIOR COMMISSIONER: Development in Sydney's water catchment is required to comply with State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011. Clause 10 of that policy requires that a consent authority must not grant consent to the carrying out of development in the drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. Neutral or beneficial effect on water quality is known in shorthand terms as NorBE.

The State Environmental Planning Policy defines two terms that are relevant for these proceedings. The first is a NorBE Guideline which is a document entitled Neutral Beneficial Effect on Water Quality Assessment Guideline 2011 that was prepared by the authority, published in The Gazette and is available through the legislation website. It is also able to be accessed through the Catchment Authority's website. The NorBE Tool is a tool that is set out in appendix 1 to the NorBE Guideline. The Catchment Authority has also published a manual designed to assist those who are undertaking preparation of applications within the catchment on the use of MUSIC, a software program that is used in a fashion that will be discussed later.

In these proceedings, I am dealing with development application X/171/2012 which seeks development consent for the construction of two tennis courts on top of the existing stormwater pond as described in the application and, as subsequently amended in these proceedings, associated stormwater…

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: [2013] NSWLEC 1174
Decision Date: 29 August 2013

CaseChat Overview and Summary

The case of Yates v Blue Mountains City Council involved an appeal against the refusal of a development application for the construction of two tennis courts atop an existing stormwater pond, as well as associated stormwater control works. The applicants, Mr and Mrs Yates, contested the Council's decision, arguing that the refusal was unreasonable and that there was a failure to properly consider the merits of their proposal. The matter was heard in the Land and Environment Court of New South Wales, where the applicants sought to overturn the Council's decision and obtain development consent for their proposed project.

The legal issues at the heart of the case centred on the proper application of the Environmental Planning and Assessment Act 1979 (NSW) and associated regulations, specifically whether the Council had acted unreasonably in refusing the development application and whether the applicants were required to bear the costs associated with the Council's review of their amended applications. Additionally, the court needed to determine whether the refusal of development consent was justified, considering the potential environmental and public health risks associated with the proposed development.

In its judgment, the court held that the Council's refusal of development consent was not unreasonable, as the proposal posed significant risks to public health and the environment, which outweighed the potential benefits of the development. The court found that the applicants had failed to adequately address the concerns raised by the Council regarding the potential impact of the development on the existing stormwater pond and associated stormwater control works. Furthermore, the court ruled that the applicants were responsible for the costs incurred by the Council as a result of the two amendments to the development application, as required by section 97B(2) of the Environmental Planning and Assessment Act 1979. Consequently, the appeal was dismissed, and development consent was refused for the proposed project.

Orders

Orders of the court

(1)Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicants are to pay the costs of the Council thrown away as a result of each of the two amendments to the development application, with those costs to be as agreed or assessed.

(2)The appeal is dismissed.

(3)Development application X/171/2012 seeking consent for the construction of two tennis courts on top of the existing stormwater pond and associated stormwater control works on Lots 6, 7, 8, 9, 10, 12 and 14 in Deposited Plan 1135373 is determined by the refusal of development consent.

(4)The exhibits, other than Exhibits A and 1, 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:	Yates and anor v Blue Mountains City Council [2013] NSWLEC 1174
Hearing dates:	2, 27 and 28 August 2013
Decision date:	29 August 2013
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	(1)Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicants are to pay the costs of the Council thrown away as a result of each of the two amendments to the development application, with those costs to be as agreed or assessed. (2)The appeal is dismissed. (3)Development application X/171/2012 seeking consent for the construction of two tennis courts on top of the existing stormwater pond and associated stormwater control works on Lots 6, 7, 8, 9, 10, 12 and 14 in Deposited Plan 1135373 is determined by the refusal of development consent. (4)The exhibits, other than Exhibits A and 1, are returned.
Catchwords:	Neutral or beneficial effect on water quality (NorBE)
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Blue Mountains Local Environmental Plan 2005
Cases Cited:	Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45 Groeneveld v Wollongong City Council [2009] NSWLEC 149 Wehbe v Pittwater Council [2007] NSWLEC 827
Category:	Principal judgment
Parties:	K Yates (First Applicant) S Soufiamlashi (Second Applicant) Blue Mountains City Council (Respondent)
Representation:	Mr A Pickles, barrister (Applicants) Mr A Seton, solicitor (Respondent) Yates Beaggi Lawyers (Applicants) Marsdens Law Group (Respondent)
File Number(s):	10042 of 2013
Publication restriction:	No