Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321

Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321

The Commissioner erred in law by assessing the roadworks component on Governor's Road against the Residential A1 zone objectives rather than the Rural A objectives required by cl 9(3) of the LEP, and that error was material because the alternative basis for refusal depended materially on an unsupported finding that the proposed shed would significantly constrain the Millers’ development potential. The Commissioner’s findings about the shed’s setback, orientation, dimensions and screening landscaping were not supported by the evidence and were significant to the combined-impact refusal. Those vitiating errors required the appeal to be upheld, the Commissioner’s decision set aside, and the...

Jurisdiction
Australia
Judgment Date
12 December 2008
Procedural Posture
S 56 a Appeal on a Question of Law From a Commissioner’s Decision Dismissing a S 97 Development Appeal and Refusing a Development Application / Appeal Before Preston CJ
Outcome
Appeal upheld; Commissioner’s decision and orders set aside; matter remitted to the Commissioner for determination in accordance with the Court’s decision; costs reserved.
Legal Topics
['development Consent' 'zone Objectives' 'error of Law' 'procedural Fairness' 'no Evidence Ground' 'materiality of Legal Error']
['planning and Environment Law' 'administrative Law'] ['development Consent' 'zone Objectives' 'error of Law' 'procedural Fairness' 'no Evidence Ground' 'materiality of Legal Error']

Case Brief

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Procedural Posture

S 56 a Appeal on a Question of Law From a Commissioner’s Decision Dismissing a S 97 Development Appeal and Refusing a Development Application / Appeal Before Preston CJ

Legal Issues

  1. 1 ["Whether the Commissioner erred in law by evaluating the roadworks component on Governor's Road against the objectives of the Residential A1 zone rather than the Rural A zone under cl 9(3) of Wingecarribee Local Environmental Plan 1989." 'Whether any error in applying cl 9(3) of Wingecarribee Local Environmental Plan 1989 was material and vitiated the Commissioner’s decision.' 'Whether the Commissioner denied procedural fairness or otherwise erred in construing condition 6(b) of the 1995 development consent.' 'Whether the Commissioner made findings about the proposed shed’s size, location and landscaping, and its impact on the Millers’ property, that were unsupported by evidence.' "Whether the applicant was denied procedural fairness concerning the issue of visual impact of removal of vegetation from Governor's Road on residents and visitors."]

Ratio Decidendi

The Commissioner erred in law by assessing the roadworks component on Governor's Road against the Residential A1 zone objectives rather than the Rural A objectives required by cl 9(3) of the LEP, and that error was material because the alternative basis for refusal depended materially on an unsupported finding that the proposed shed would significantly constrain the Millers’ development potential. The Commissioner’s findings about the shed’s setback, orientation, dimensions and screening landscaping were not supported by the evidence and were significant to the combined-impact refusal. Those vitiating errors required the appeal to be upheld, the Commissioner’s decision set aside, and the...

Court Disposition

Appeal upheld; Commissioner’s decision and orders set aside; matter remitted to the Commissioner for determination in accordance with the Court’s decision; costs reserved.

Orders

  • ['The appeal is upheld.' 'The decision and orders of the Commissioner dated 1 August 2008 are set aside.' 'The matter is remitted to the Commissioner for determination by the Commissioner in accordance with the decision of the Court.' 'Costs of the appeal are reserved.' 'The matter is listed for directions before...