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 1Texts 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:
Solicitors:
Mr T Howard SC (Applicant)
Mr T To ( Respondent)
McCabes Lawyers (Applicant)
Moray & Agnew (Respondent)
File Number(s): 2016/219940 Publication restriction: No
Judgment
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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.
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Accordingly, the Court orders:
The appeal is upheld.
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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- AGLC
- Australian Native Landscapes Pty Ltd v Lake Macquarie City Council (No.2) [2018] NSWLEC 1095
- Case
- [2018] NSWLEC 1095
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court involved the interpretation and application of relevant planning laws and policies, specifically the Lake Macquarie City Council Local Environmental Plan 2012 and the State Environmental Planning Policy (Environmentally Affected Development) 2007. The applicant contended that the council's decision was based on incorrect interpretations of these laws and policies, and that the refusal to grant development consent was not justified. The council, on the other hand, argued that the applicant's proposal did not comply with the relevant planning instruments and that the potential environmental impacts were not adequately addressed.
The court found in favour of the applicant, holding that the council's refusal to grant development consent was unreasonable. The court identified several errors in the council's interpretation of the relevant planning laws and policies, and concluded that the applicant's proposal was consistent with the objectives of these instruments. The court also found that the potential environmental impacts of the project could be effectively managed through the conditions set out in the development consent. As a result, the appeal was upheld, and development consent was granted to the applicant subject to the conditions outlined in Annexure A.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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