Andersen v Tamworth Regional Council - [2019] NSWLEC 1580

Land and Environment Court

New South Wales

Medium Neutral Citation: Andersen v Tamworth Regional Council [2019] NSWLEC 1580
Hearing dates: 27-29 March 2019; 8-9 May 2019; joint expert report filed with the Court on 2 July 2019; final conditions filed with the Court on 19 July 2019
Date of orders: 26 November 2019
Decision date: 26 November 2019
Jurisdiction: Class 1
Before: Dixon SC
Decision:
The Court orders that:
(1)   The appeal is upheld.
(2)   Development consent is granted to Development Application No. 2019-0037 for the purpose of a manufactured home estate comprising 99 dwellings sites and community facilities with clubhouse, swimming pool and bowling green on Lot 2 DP 864981 and Lot 120 DP 1105753, Greg Norman Drive, Hillvue, New South Wales, subject to the conditions of consent in Annexure A.
(3)   All Exhibits are returned except for Exhibits 1 and X.

Catchwords: DEVELOPMENT APPLICATION – construction of a manufactured home estate – Longyard golf course – proposed development near Tamworth’s Sports and Entertainment Precinct – compatibility with adjoining land uses – playability of the golf course – consideration of impacts relating to acoustics, transport, town planning, stormwater and sewerage, amenity and lighting – site suitability
Legislation Cited: Environmental Planning and Assessment Act 1979
Local Government Act 1993
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005
Roads Act 1993
State Environmental Planning Policy No 36 – Manufactured Home Estates
Tamworth Regional Local Environmental Plan 2010
Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343
BGB Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237
Mobil Oil Australia Limited v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314
Stockland Developments Pty Ltd v Wollongong Council (2004) 139 LGERA 374
Texts Cited: AS/NZS 4282:2019
Category: Principal judgment
Parties: Bob Andersen (Applicant)
Tamworth Regional Council (Respondent)
Representation:
Counsel:
C McEwen SC with M Staunton (Applicant)
A Pickles SC with S Nash (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Coutts Solicitors and Conveyancers (Respondent)

File Number(s): 2018/361228
Publication restriction: No

Judgment

COMMISSIONER: The Longyard Golf Course (“Longyard”) is a privately owned golf course located approximately 6km from the Tamworth CBD. It offers an 18-hole golf course, a club driving range, and three ancillary residences, a putt putt golf course and pro shop and also contains an additional dwelling, machinery and storage sheds. The property address is Lot 120 DP 1105753 and Lot 2 DP 864981, Greg Norman Drive, Hillvue, New South Wales (“the site”).
In May 2018, the Council approved subdivision of the land into two lots pursuant to development application (DA 2017/0267). The proposed Lots 100 and 101 have not yet been registered with the NSW Land Registry Services.
The subdivision approval was followed with an application (DA 2019/0037) for the construction of a manufactured home estate (“MHE”) on part of the site (“DA”). The development included the construction of 120 dwellings sites and community facilities, including a clubhouse, swimming pool and bowling green in 6 stages. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 1580
Decision Date: 26 November 2019

CaseChat Overview and Summary

The appeal was brought by Andersen against the Tamworth Regional Council in relation to a development application concerning the construction of a manufactured home estate. The application, numbered 2019-0037, sought approval for a development comprising 99 dwelling sites, along with community facilities such as a clubhouse, swimming pool, and a bowling green. The proposed development site was Lot 2 DP 864981 and Lot 120 DP 1105753, located on Greg Norman Drive, Hillvue, New South Wales. The dispute centred on whether the development should be granted consent and what conditions, if any, should be attached to that consent.

The central legal issues that the Court had to address included the interpretation of relevant planning laws and policies, the suitability of the proposed development in relation to the surrounding area, and whether the applicant had adequately demonstrated compliance with environmental and community impact assessments. Additionally, the Court had to consider whether the decision of the Council to refuse the development application was lawful, rational, and in accordance with the relevant statutory and policy framework.

In delivering its judgment, the Court found that the decision of the Tamworth Regional Council to refuse the development application was not justified. The Court held that the applicant had demonstrated that the proposed development would not significantly harm the environment or adversely affect the surrounding community. The Court also found that the development was in accordance with the applicable planning policies and that the applicant had adequately addressed potential environmental impacts through appropriate mitigation measures. Consequently, the Court ruled that development consent should be granted, subject to the conditions outlined in Annexure A. The Court further directed that all exhibits be returned, except for Exhibits 1 and X.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 2019-0037 for the purpose of a manufactured home estate comprising 99 dwellings sites and community facilities with clubhouse, swimming pool and bowling green on Lot 2 DP 864981 and Lot 120 DP 1105753, Greg Norman Drive, Hillvue, New South Wales, subject to the conditions of consent in Annexure A.

(3) All Exhibits are returned except for Exhibits 1 and X.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Andersen v Tamworth Regional Council [2019] NSWLEC 1580
Hearing dates:	27-29 March 2019; 8-9 May 2019; joint expert report filed with the Court on 2 July 2019; final conditions filed with the Court on 19 July 2019
Date of orders:	26 November 2019
Decision date:	26 November 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. 2019-0037 for the purpose of a manufactured home estate comprising 99 dwellings sites and community facilities with clubhouse, swimming pool and bowling green on Lot 2 DP 864981 and Lot 120 DP 1105753, Greg Norman Drive, Hillvue, New South Wales, subject to the conditions of consent in Annexure A. (3) All Exhibits are returned except for Exhibits 1 and X.
Catchwords:	DEVELOPMENT APPLICATION – construction of a manufactured home estate – Longyard golf course – proposed development near Tamworth’s Sports and Entertainment Precinct – compatibility with adjoining land uses – playability of the golf course – consideration of impacts relating to acoustics, transport, town planning, stormwater and sewerage, amenity and lighting – site suitability
Legislation Cited:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 Roads Act 1993 State Environmental Planning Policy No 36 – Manufactured Home Estates Tamworth Regional Local Environmental Plan 2010
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343 BGB Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237 Mobil Oil Australia Limited v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314 Stockland Developments Pty Ltd v Wollongong Council (2004) 139 LGERA 374
Texts Cited:	AS/NZS 4282:2019
Category:	Principal judgment
Parties:	Bob Andersen (Applicant) Tamworth Regional Council (Respondent)
Representation:	Counsel: C McEwen SC with M Staunton (Applicant) A Pickles SC with S Nash (Respondent) Solicitors: Sparke Helmore Lawyers (Applicant) Coutts Solicitors and Conveyancers (Respondent)
File Number(s):	2018/361228
Publication restriction:	No