Michael Brown Planning Strategies v Wingecarribee Shire Council (No 2) [2019] NSWLEC 192

Michael Brown Planning Strategies v Wingecarribee Shire Council (No 2) [2019] NSWLEC 192

Clause 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010 required the consent authority to be satisfied, at the time of determination, that the development for which consent was sought is compatible with the flood hazard of the land. The proposed railway culvert augmentation works were not part of the development application but only the subject of a proposed deferred commencement condition. Because those works could not be relied upon to satisfy the precondition in cl 7.9(3)(a), the Commissioner correctly concluded that she could not be satisfied that the development was compatible with the flood hazard of the land, and all grounds of appeal failed.

Jurisdiction
Australia
Judgment Date
11 December 2019
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 on a Question of Law From a Commissioner's Refusal of Development Consent / Appeal Dismissed
Outcome
Appeal dismissed; Applicant to pay the Respondent's costs as agreed or assessed.
Legal Topics
['development Consent' 'flood Planning' 'deferred Commencement Conditions' 'statutory Construction' 'error of Law on Appeal From Commissioner']
['planning and Environment Law' 'administrative Law'] ['development Consent' 'flood Planning' 'deferred Commencement Conditions' 'statutory Construction' 'error of Law on Appeal From Commissioner']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 on a Question of Law From a Commissioner's Refusal of Development Consent / Appeal Dismissed

Legal Issues

  1. 1 ['Whether the Commissioner erred in law in construing cl 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010 as requiring satisfaction, at the time of determination, that the development is compatible with the flood hazard of the land.' 'Whether a deferred commencement condition requiring completion of railway culvert augmentation works could be relied upon to satisfy the precondition in cl 7.9(3)(a).' 'Whether the Commissioner disregarded a mandatory relevant matter, acted with legal unreasonableness or irrationality, or made a no-evidence finding by excluding the proposed culvert augmentation works from the cl 7.9(3)(a) assessment.']

Ratio Decidendi

Clause 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010 required the consent authority to be satisfied, at the time of determination, that the development for which consent was sought is compatible with the flood hazard of the land. The proposed railway culvert augmentation works were not part of the development application but only the subject of a proposed deferred commencement condition. Because those works could not be relied upon to satisfy the precondition in cl 7.9(3)(a), the Commissioner correctly concluded that she could not be satisfied that the development was compatible with the flood hazard of the land, and all grounds of appeal failed.

Court Disposition

Appeal dismissed; Applicant to pay the Respondent's costs as agreed or assessed.

Orders

  • ['The appeal is dismissed.' 'The USB stick containing the Evidence Folders is returned.' 'Exhibit 1 is returned.' "The Applicant is to pay the Respondent's costs as agreed or assessed."]