Doyle v Hornsby Shire Council [2018] NSWLEC 45

Land and Environment Court New South Wales

Medium Neutral Citation: Doyle v Hornsby Shire Council [2018] NSWLEC 45 Hearing dates: 5 December 2017 and 21 February 2018 Date of orders: 10 April 2018 Decision date: 10 April 2018 Jurisdiction: Class 1 Before: Moore J Decision: 1 The appeal is dismissed; 2 The Applicant is to pay the Respondent's costs as agreed or assessed; and 3 The exhibits are returned. Catchwords: APPEAL - s 56A appeal against decision of Commissioner - challenge to Commissioner's acceptance of Council witness as qualified to give expert evidence - no proper basis to uphold complaint about Commissioner's decision on this point - proposal for driveway to be of maximum gradient of 34.05% - Development Control Plan proposes maximum gradient of 25% - steeper gradients may be approved if circumstances warrant - Council's expert's evidence that details on one aspect of the plans (cross-fall of driveway at bend) was necessary to be satisfied that driveway was safe - Appellant's expert proposed that deficiency was likely to be able to be rectified at construction certificate stage - Appellant's and Council's experts had not seen a driveway constructed at proposed 34.05% maximum gradient - challenge to Commissioner's decision that there was inadequate information at the development consent stage to approve - Commissioner's decision based on acceptance of evidence of Council's expert's evidence - no demonstrable error in her conclusion on this point - conclusion fundamental to refusal of proposed driveway - no need to consider other grounds of appeal as Commissioner's determination on basis of inadequacy of information sufficient to refuse appeal heard by her - appeal against Commissioner's decision rejected COSTS - costs follow the event in s 56A appeals - Appellant to pay respondent's costs as agreed or assessed Legislation Cited: Environmental Planning and Assessment Act 1979 Evidence Act 1995, s 79(1) Hornsby Development Control Plan 2013 Land and Environment Court Act 1979, ss 34AA(2)(b), 38(1) and (2) and 56A Cases Cited: 253 Spit Road Pty Ltd v Mosman Municipal Council [2016] NSWLEC 1274 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Azzopardi v Tasman EUB Industries Ltd (1995) 4 NSWLR 139 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Brimbella Pty Ltd v Mosman Municipal Council (1985) Dasreef Pty Ltd v Hawchar [2011] HCA 21 Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC12079 LGERA 367 Idoport Pty Ltd & Anor v National Australia Bank Ltd [2001] NSWSC 123 James Patrick Doyle v Hornsby Shire Council [2015] NSWLEC 1576 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 668 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63 Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 Category: Principal judgment Parties: James Patrick Doyle (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: Self-represented (Applicant) Mr S Nash, barrister (Respondent)