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

Land and Environment Court New South Wales

Medium Neutral Citation: Michael Brown Planning Strategies v Wingecarribee Shire Council (No 2) [2019] NSWLEC 192 Hearing dates: 5 December 2019 Date of orders: 11 December 2019 Decision date: 11 December 2019 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [47] Catchwords: APPEAL - proposed residential flat building development - development in flood risk area - unless removed, flood risk precludes granting of development consent - Council refused development consent on the basis, inter alia, of flood risk - Class 1 merit appeal - Applicant supported use of a deferred commencement condition to resolve flood risk and render the proposed development approvable - Commissioner concluded that, having regard to the flood planning clause in the Wingecarribee Local Environmental Plan 2010, use of a deferred commencement condition for this purpose was not permissible - Commissioner refused development consent on this basis - Applicant alleges error of law in Commissioner's conclusion - Applicant pleads four grounds in support of this appeal pursuant to s 56A of the Land and Environment Court Act 1979 - all four grounds rely on the Applicant's interpretation of an element of the flood-planning clause - Applicant's interpretation rejected - appeal dismissed - Applicant to pay Respondents costs as agreed or assessed Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16(3) Environmental Planning and Assessment Regulation 2000, cl 95 Land and Environment Court Act 1979, ss 34, 56A Willoughby Local Environmental Plan 2012 Wingecarribee Local Environmental Plan 2010, cl 7.9 Cases Cited: DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173 Michael Brown Planning Strategies v Wingecarribee Shire Council [2019] NSWLEC 1311 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Project Blue Sky v ABA [1998] 194 CLR 355; [1998] HCA 28 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Category: Principal judgment Parties: Michael Brown Planning Strategies (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: Mr C Ireland, barrister (Applicant) Mr C Leggatt SC (Respondent)