Graeme Sayer v. Hastings Council [1998] NSWLEC 99

Graeme Sayer v. Hastings Council [1998] NSWLEC 99

The appeal failed because the Assessor was aware that three separate development applications were before him and his reference to 'the application' did not show that he failed to consider them; the substantive flooding issue applied to all three. The Assessor did not misdirect himself by adopting a binding prohibition against new development on flood prone land, but considered the evidence and made the merits determinations required under s 90 of the Environmental Planning and Assessment Act 1979. No error of law was established on any ground.

Jurisdiction
Australia
Judgment Date
05 June 1998
Procedural Posture
Appeal Pursuant to S 56 a of the Land & Environment Court Act 1979 Against a Decision Dismissing an Appeal From Refusal of Development Applications / Appeal to Sheahan J From Assessor Dr J Roseth's Decision
Outcome
Appeal dismissed.
Legal Topics
['development Applications for Dwellings' 'flood Prone Land' 'flood Evacuation Plan' 'error of Law on Appeal' 'exercise of Discretion' 'separate Consideration of Development Applications']
['environmental Planning and Assessment' 'land and Environment' 'administrative Law'] ['development Applications for Dwellings' 'flood Prone Land' 'flood Evacuation Plan' 'error of Law on Appeal' 'exercise of Discretion' 'separate Consideration of Development Applications']

Case Brief

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Procedural Posture

Appeal Pursuant to S 56 a of the Land & Environment Court Act 1979 Against a Decision Dismissing an Appeal From Refusal of Development Applications / Appeal to Sheahan J From Assessor Dr J Roseth's Decision

Legal Issues

  1. 1 ['Whether the Assessor erred in law by failing to determine three separate development applications individually under s 90 of the Environmental Planning and Assessment Act 1979.' 'Whether the Assessor erred in law by treating new development on flood prone land as impermissible or by acting on an irrelevant prohibitory principle.' 'Whether the Assessor failed to consider each development application on its separate merits having regard to evacuation procedures and plans.']

Ratio Decidendi

The appeal failed because the Assessor was aware that three separate development applications were before him and his reference to 'the application' did not show that he failed to consider them; the substantive flooding issue applied to all three. The Assessor did not misdirect himself by adopting a binding prohibition against new development on flood prone land, but considered the evidence and made the merits determinations required under s 90 of the Environmental Planning and Assessment Act 1979. No error of law was established on any ground.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The Respondent's costs should be paid by the Applicant." 'Exhibits 2, 3, 4 and C remain with the Court papers.' 'Exhibits A and D before Sheahan J may be returned.']