Hodgson v The Hills Shire Council [2022] NSWLEC 73

Hodgson v The Hills Shire Council [2022] NSWLEC 73

None of the 15 proposed grounds of appeal identify any relevant error of law or an error of law that would vitiate the decision of the Commissioner. There was no mandatory legislative obligation for the Commissioner or RFS to develop an alternative solution or refer the development application; consultation with RFS had occurred satisfying s 4.14(1A) EP&A Act; misconstruction of 'infill development,' even if proved, would not vitiate the Commissioner's decision on merit. The proposed grounds are manifestly groundless with no prospects of success; leave to amend is refused.

Jurisdiction
Australia
Judgment Date
17 June 2022
Procedural Posture
Notice of Motion (class 1 Appeal) / Interlocutory Decision on Leave to Amend Grounds of Appeal
Outcome
Leave to amend appeal grounds refused; Appellant's Notice of Motion dismissed; costs awarded to Council.
Legal Topics
['leave to Amend Grounds of Appeal' 'errors of Law' 'bushfire Risk Assessment' 'procedural Fairness' 'statutory Interpretation' 'development Application' 'costs']
['administrative Law' 'planning Law' 'civil Procedure'] ['leave to Amend Grounds of Appeal' 'errors of Law' 'bushfire Risk Assessment' 'procedural Fairness' 'statutory Interpretation' 'development Application' 'costs']

Case Brief

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Procedural Posture

Notice of Motion (class 1 Appeal) / Interlocutory Decision on Leave to Amend Grounds of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to amend the grounds of appeal under s 64 Civil Procedure Act 2005 (NSW)' "Whether error of law has been identified that would vitiate the Commissioner's decision" 'Whether the Commissioner was legally required to refer the development application to the RFS for assessment under s 4.14(1A) EP&A Act' "Whether misconstruction of 'infill development' triggered a jurisdictional error"]

Ratio Decidendi

None of the 15 proposed grounds of appeal identify any relevant error of law or an error of law that would vitiate the decision of the Commissioner. There was no mandatory legislative obligation for the Commissioner or RFS to develop an alternative solution or refer the development application; consultation with RFS had occurred satisfying s 4.14(1A) EP&A Act; misconstruction of 'infill development,' even if proved, would not vitiate the Commissioner's decision on merit. The proposed grounds are manifestly groundless with no prospects of success; leave to amend is refused.

Court Disposition

Leave to amend appeal grounds refused; Appellant's Notice of Motion dismissed; costs awarded to Council.

Orders

  • ["Order 3 of Appellant's Notice of Motion filed 3 December 2021 is dismissed." "Appellant is ordered to pay Council's costs of the hearing relating to order 3 of Appellant's Notice of Motion." 'Order 4 of the directions made on 26 November 2021 is vacated.' 'Exhibits are returned; parties to uplift exhibits within 7...