Neate v Shellharbour City Council [2007] NSWLEC 526

Neate v Shellharbour City Council [2007] NSWLEC 526

The Senior Commissioner acknowledged the DCP but did not treat it as the focal point required by s79C and Zhang. Instead, he substituted a different assessment based on balancing the risk of development against economic loss and what level of risk society accepts. He also misdirected himself by treating the FPDM and DCP as alternative approaches and by adopting an expert approach that applied the FPDM to an individual development application without a proper legal basis. Grounds 1 and 2 were therefore upheld.

Jurisdiction
Australia
Judgment Date
21 August 2007
Procedural Posture
Appeal Pursuant to S 56 a of the Land and Environment Court Act 1979 on Questions of Law Concerning Development Consent / Judgment on Appeal From the Decision of Senior Commissioner Roseth in Neate V Shellharbour City Council [2007] NSWLEC 234
Outcome
Appeal upheld on grounds 1 and 2; ground 3 not resolved.
Legal Topics
['development Consent' 'development Control Plan' 'floodplain Risk Management' 'question of Law Appeal' 'relevant Considerations' 'manifest Unreasonableness']
['planning and Environment Law' 'administrative Law'] ['development Consent' 'development Control Plan' 'floodplain Risk Management' 'question of Law Appeal' 'relevant Considerations' 'manifest Unreasonableness']

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Procedural Posture

Appeal Pursuant to S 56 a of the Land and Environment Court Act 1979 on Questions of Law Concerning Development Consent / Judgment on Appeal From the Decision of Senior Commissioner Roseth in Neate V Shellharbour City Council [2007] NSWLEC 234

Legal Issues

  1. 1 ['Whether the Senior Commissioner failed to give proper, genuine and real consideration to the Shellharbour City Council Floodplain Risk Development Control Plan.' 'Whether the Senior Commissioner misunderstood or misdirected himself on the application of the Development Control Plan to the proposed development.' 'Whether the conclusion that the flood liability of the development site was not a reason for refusal was manifestly unreasonable.']

Ratio Decidendi

The Senior Commissioner acknowledged the DCP but did not treat it as the focal point required by s79C and Zhang. Instead, he substituted a different assessment based on balancing the risk of development against economic loss and what level of risk society accepts. He also misdirected himself by treating the FPDM and DCP as alternative approaches and by adopting an expert approach that applied the FPDM to an individual development application without a proper legal basis. Grounds 1 and 2 were therefore upheld.

Court Disposition

Appeal upheld on grounds 1 and 2; ground 3 not resolved.

Orders

  • ['The appeal should be upheld.' 'The parties may make brief submissions, if required, before final orders remitting the matter for re-hearing are made.']