Neate v Shellharbour City Council (No 2) [2007] NSWLEC 654

Land and Environment Court of New South Wales

CITATION : Neate v Shellharbour City Council (No 2) [2007] NSWLEC 654

Applicant: David Neate PARTIES : Respondent: Shellharbour City Council

FILE NUMBER(S) : 10337 of 2006

CORAM: Roseth SC

KEY ISSUES: Development Application - Development Control Plan - Question of Law :- error of law; DCP as fundamental element

Zhang v Canterbury City Council (2001) 51NSWLR 586 LEGISLATION CITED: Ai v Newcastle City Council (2003) 126 LGERA 194 Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195 Stadurn v Blacktown City Counsil (2004) 134 LGERA 157

DATES OF HEARING: 28/09/2007

DATE OF JUDGMENT: 9 October 2007

Applicant: LEGAL REPRESENTATIVES: Mr C McEwen, SC and Mr M Staunton, barrister Respondent: Mr A Pickles, barrister

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

9 October 2007

10337 of 2006 Neate v Shellharbour City Council

JUDGMENT 1 Senior Commissioner: This is a Class 1 appeal, which I heard on 27 March 2007 (the first merit hearing) and determined on 1 May 2007 by granting consent. Shellharbour City Council (the council) successfully appealed my decision under s56A of the Land and Environment Court Act 1979. Pain J delivered a judgment on 24 August 2007, having found two errors of law in my decision. In a further judgment on 28 August 2007 her Honour remitted the matter to me for hearing in accordance with her judgment of 24 August 2007. 2 Paragraph 12 of her Honour's judgment of 28 August 2007 sums up her findings. I have held that the Senior Commissioner has made two errors of law. The errors concern the application of instruments under which the risk of flood impact is assessed. The errors I have found include applying the wrong test to the issue of assessment of flooding risk. That issue is a significant issue in the proceedings and a matter about which the Senior Commissioner had to form a view on the merits of the case in order to carry out his task. I held that the application of his own subjective test was not legally correct. While that is an expression of his own view about the approach to the assessment of risk that is part of the legal error I have found in the s56A appeal. 3 The above paragraph, when read together with her Honour's judgment of 24 August 2007, suggests that one error was to consider the council's Flood Risk Management Development Control Plan and the (then) Department of Infrastructure, Planning and Natural Resources document Floodplain Development Manual as alternative controls that may be applied to the assessment of development applications. The second error was the failure to make the DCP the fundamental element in the assessment of the application.