Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49

Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49

The Commissioner erred in law by misdirecting herself as to the requirements of the Planning for Bush Fire Protection (PBP) in respect of Asset Protection Zones (APZs) on adjoining public land. The Commissioner asked the wrong question by focusing on whether the adjoining land was 'managed land' rather than whether there was a binding guarantee, such as a Plan of Management, that the APZ would be managed in perpetuity as required by PBP. Consequently, the Commissioner's decision could not stand.

Jurisdiction
Australia
Judgment Date
16 May 2024
Procedural Posture
Appeal / Judgment and Orders on Appeal
Outcome
Appeal upheld; original decision set aside; matter remitted for redetermination; costs awarded to appellant.
Legal Topics
['bush Fire Prone Land' 'asset Protection Zone' 'development Consent' 'planning for Bush Fire Protection' 'judicial Review' 'performance Criteria' 'apz on Adjoining Land']
['environment and Planning Law'] ['bush Fire Prone Land' 'asset Protection Zone' 'development Consent' 'planning for Bush Fire Protection' 'judicial Review' 'performance Criteria' 'apz on Adjoining Land']

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Procedural Posture

Appeal / Judgment and Orders on Appeal

Legal Issues

  1. 1 ['Whether the proposed Asset Protection Zone (APZ) on adjoining Council land complies with Planning for Bush Fire Protection 2019 (PBP) requirements' 'Whether the Commissioner misdirected herself regarding PBP performance criteria and solutions for APZs on public land' "Whether the existence of 'managed land' satisfies legal requirements for APZs in perpetuity"]

Ratio Decidendi

The Commissioner erred in law by misdirecting herself as to the requirements of the Planning for Bush Fire Protection (PBP) in respect of Asset Protection Zones (APZs) on adjoining public land. The Commissioner asked the wrong question by focusing on whether the adjoining land was 'managed land' rather than whether there was a binding guarantee, such as a Plan of Management, that the APZ would be managed in perpetuity as required by PBP. Consequently, the Commissioner's decision could not stand.

Court Disposition

Appeal upheld; original decision set aside; matter remitted for redetermination; costs awarded to appellant.

Orders

  • ['The appeal is upheld.' 'The decision of Commissioner Espinosa of 10 November 2023 and the orders of 5 December 2023 are set aside.' 'The matter is remitted to be determined according to law and these reasons for decision.' "The respondent is to pay the appellant's costs of this appeal."]