David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council (No 2) [2017] NSWLEC 149

Land and Environment Court New South Wales

Medium Neutral Citation: David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council (No 2) [2017] NSWLEC 149 Hearing dates: 24 October 2017 Date of orders: 13 November 2017 Decision date: 13 November 2017 Jurisdiction: Class 1 Before: Moore J Decision: (1) The appeal is upheld; (2) The orders of the Court made on 31 May 2017 are set aside; (3) Pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979, Development Application DA27-2016 for subdivision of Lot 212 in Deposited Plan 1154848 at Hunter Road, Moonan Flat is determined by refusal; (4) The Appellant is to pay the Respondent's costs as agreed or assessed; and (5) The Appeal Book is returned. Catchwords: APPEAL - proposed subdivision - proposal to subdivide an undersized rural allotment into two allotments - alleged errors of law by Commissioner - Commissioner concluded that two provisions of a local environmental plan (LEP) were not available to permit approval of the subdivision - Commissioner further considered that, if one of the provisions of the LEP was available, as a matter of discretion, its provisions were not satisfied - case run before Commissioner on a significantly erroneous basis - Commissioner addressed the bases of the case as it was advanced to her - significant errors in Commissioner's decision arising as a consequence of the way the case was run before her - appeal upheld DETERMINATION OF DEVELOPMENT APPLICATION - Discretion available pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979 to determine development application on the facts found by the Commissioner and held to be available on the evidence before her - first test in relevant provision of the LEP not satisfied - failure to satisfy test dispositive of the application - development application determined by refusal COSTS - costs in appeals against Commissioners' decisions usually follow the event - no disentitling conduct on appeal by the Respondent - Appellant ordered to pay the Respondent's costs of the appeal as agreed or assessed Legislation Cited: Environmental Planning and Assessment Act 1979, s 97 Land and Environment Court Act 1979, ss 56A and 57 State Environmental Planning Policy (Rural Lands) 2008 Upper Hunter Local Environmental Plan 2013, cll 4.2 and 4.2A Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279 EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 156 LGERA 150; [2007] NSWCA 300 The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47 Category: Principal judgment Parties: David Casson trading as Casson Planning & Development Services (Appellant) Upper Hunter Shire Council (Respondent) Representation: Counsel: Mr R Lovas and Ms S Hill, barristers (Appellant) Ms H Irish, barrister (Respondent)