Forgall Pty Ltd v Greater Taree City Council [2015] NSWLEC 61

Forgall Pty Ltd v Greater Taree City Council [2015] NSWLEC 61

Forgall was not denied procedural fairness. The absence of a final landscaping plan was not a new issue introduced by the Commissioner but a fact relevant to the pleaded and argued central issue of whether the development was consistent with the relevant Rural General Zone objectives and therefore permissible. Forgall bore the responsibility to adduce evidence establishing permissibility, was given the opportunity to do so, and chose to rely on a post-consent condition rather than tendering a final landscaping plan. The Commissioner was not required to warn Forgall that its evidence was insufficient or advise it what further evidence to adduce. The ACHDD Report comments did not form the...

Jurisdiction
Australia
Judgment Date
23 April 2015
Procedural Posture
Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 Against a Commissioner's Decision on a Question of Law / Appeal From Commissioner's Dismissal of a Development Application Appeal
Outcome
Appeal dismissed; applicant ordered to pay the respondent's costs of the appeal.
Legal Topics
['development Consent' 'prohibited Development' 'zone Objectives' 'procedural Fairness' 'appeal on a Question of Law' 'costs']
['planning and Environment Law' 'administrative Law' 'civil Procedure'] ['development Consent' 'prohibited Development' 'zone Objectives' 'procedural Fairness' 'appeal on a Question of Law' 'costs']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 Against a Commissioner's Decision on a Question of Law / Appeal From Commissioner's Dismissal of a Development Application Appeal

Legal Issues

  1. 1 ['Whether the Commissioner denied Forgall procedural fairness by refusing the development application on the basis of an absence of final detail of landscaping without giving Forgall an opportunity to address that matter.' 'Whether the Commissioner denied Forgall procedural fairness by finding the Aboriginal Cultural Heritage Due Diligence Report inadequate without giving Forgall an opportunity to address that matter.' 'Whether Forgall had adduced sufficient evidence to establish that the proposed development was consistent with the relevant Zone 1(a) Rural General objectives and therefore permissible.' "Whether it was fair and reasonable to order the unsuccessful applicant to pay the respondent's costs of the appeal."]

Ratio Decidendi

Forgall was not denied procedural fairness. The absence of a final landscaping plan was not a new issue introduced by the Commissioner but a fact relevant to the pleaded and argued central issue of whether the development was consistent with the relevant Rural General Zone objectives and therefore permissible. Forgall bore the responsibility to adduce evidence establishing permissibility, was given the opportunity to do so, and chose to rely on a post-consent condition rather than tendering a final landscaping plan. The Commissioner was not required to warn Forgall that its evidence was insufficient or advise it what further evidence to adduce. The ACHDD Report comments did not form the...

Court Disposition

Appeal dismissed; applicant ordered to pay the respondent's costs of the appeal.

Orders

  • ['Dismiss the appeal.' "Order the applicant to pay the respondent's costs of the appeal."]