Australian Native Landscapes Pty Ltd v Lake Macquarie City Council (No.2)

[2018] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation:	Australian Native Landscapes Pty Ltd v Lake Macquarie City Council (No.2) [2018] NSWLEC 1095
Hearing dates:	3, 4, 6, 7, 10 & 11 April 2017
Date of orders:	28 February 2018
Decision date:	28 February 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	(1)   The appeal is upheld. (2)    Development consent is granted to Development Application DA792/2016 in respect of land at Lot 84 DP 9632 known as 60 Crawford Road, Cooranbong, approved subject to the conditions set out in Annexure A.
Catchwords:	APPEAL – development application for a leachate dam, surcharge storage area, bunding – impacts from leachate and odour arising from the operations on the site – Res Judicata – whether issue estoppel in respect of size and capacity of the temporary surcharge overflow area arising from findings in related class 4 judgment
Legislation Cited:	Protection of the Environment Operations Act 1997 (NSW) Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited:	Australian Native Landscapes Pty Limited v Lake Macquarie City Council (No 5) [2016] NSWLEC 134 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Weston Aluminium Pty Ltd v Environment Protection Authority and Anor; Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 156 LGERA 283 Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171 Carr v Minister for Land & Water Conservation (2000) 109 LGERA 175 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Allen Commercial Constructions Pty Ltd v The Council of the Municipality of North Sydney (1970) 123 CLR 490 Municipal Council of Sydney v Campbell [1925] AC 338 Council of the Shire of Werribee v Kerr (1928) 42 CLR 1
Texts Cited:	Handley K, Spencer Bower and Handley – Res Judicata, (4th ed 2009, LexisNexis)
Category:	Principal judgment
Parties:	Australian Native Landscapes Pty Ltd (Applicant) Lake Macquarie City Council (Respondent)
Representation:	Counsel: Mr T Howard SC (Applicant) Mr T To ( Respondent)   Solicitors: McCabes Lawyers (Applicant) Moray & Agnew (Respondent)
File Number(s):	2016/219940
Publication restriction:	No

Judgment

1. In my judgment in Australian Native Landscapes Pty Ltd v Lake Macquarie City Council [2018] NSWLEC 1006 published on 11 January 2018 in determining the application I ordered that the Council provide to the Court a copy of the conditions of consent consistent with my reasons for judgment. That direction has been satisfied with the receipt of the Council’s conditions of consent on 29 January 2018; the consequence being that the matter is now complete. That said, I wish to make abundantly clear for the purpose of defining the time for commencement of the deferred commencement conditions in Part A of the conditions of consent that time is to run from the date of the publication of this judgment being 28 February 2018.

2. Accordingly, the Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA792/2016 in respect of land at Lot 84 DP 9632 known as 60 Crawford Road, Cooranbong, approved subject to the conditions set out in Annexure A.

__________________________

Susan Dixon

Senior Commissioner of the Land & Environment Court

Annexure A (103 KB, pdf)

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Decision last updated: 28 February 2018