Coastplan Consulting v Central Coast Council - [2018] NSWLEC 47

Land and Environment Court

New South Wales

Medium Neutral Citation: Coastplan Consulting v Central Coast Council [2018] NSWLEC 47
Hearing dates: 1 and 4 December 2017
Date of orders: 10 April 2018
Decision date: 10 April 2018
Jurisdiction: Class 1
Before: Robson J
Decision:
See orders at [70]

Catchwords: DEVELOPMENT APPLICATION – appeal against refusal of development application – use prohibited in the zone – whether use covered by existing use rights – whether existing use rights limited to short-term caravan accommodation – applicable principles
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 4.65
Gosford Interim Development Order No 122
Local Government Act 1919 (NSW) s 289H
Local Government Act 1993 (NSW) s 68
Sydney Regional Environmental Plan No 6 – Gosford Coastal Areas
Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343
Ashfield Municipal Council v Armstrong [2002] NSWCA 269; (2002) 122 LGERA 105
Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198
Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26
Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147
MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125
Najask Pty Ltd v Palerang Council [2009] NSWCA 39; (2009) 165 LGERA 171
Najask Pty Ltd v Palerang Council [2008] NSWLEC 160
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50; (1989) 67 LGRA 344
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56
Sevenex Pty Ltd v Blue Mountains City Council (No 2) [2010] NSWLEC 101
Shire of Perth v O’Keefe (1964) 110 CLR 529
Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4
Category: Principal judgment
Parties: Coastplan Consulting (Applicant)
Central Coast Council (Respondent)
Representation:
Counsel:
A M Pickles SC (Applicant)
C R Ireland (Respondent)
Solicitors:
Tonkin Drysdale Partners (Applicant)
Central Coast Council (Respondent)

File Number(s): 2017/00205594
Publication restriction: Nil

Judgment

Introduction

Coastplan Consulting (‘Coastplan’) brings this Class 1 appeal against the decision of Central Coast Council (‘Council’) to refuse Development Application No 48304/2015 for the demolition of 12 existing caravan sites, clearing of vegetation, and the construction of 48 new “long-term accommodation” caravan sites (‘the application’) on the land in Lot 1 DP 610629, known as 437 Wards Hill Road, Empire Bay (‘the site’).
It is common ground between the parties that long-term caravan sites are prohibited in the zone. The sole dispute is whether Coastplan has the benefit of existing use…

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: [2018] NSWLEC 47
Decision Date: 10 April 2018

CaseChat Overview and Summary

Coastplan Consulting brought proceedings against Central Coast Council in the Land and Environment Court of New South Wales. The plaintiff alleged that the defendant had failed to comply with certain provisions of the Environmental Planning and Assessment Act 1979 in relation to the approval of a development application. Specifically, Coastplan Consulting claimed that the Council had not adequately assessed the environmental impacts of the proposed development, which was a significant issue given the sensitive nature of the site. The court was required to determine whether the Council had complied with the statutory requirements and whether the decision to approve the development was legally sound.

The central legal issues in this case revolved around the interpretation and application of the Environmental Planning and Assessment Act 1979. The primary focus was on whether the Council had correctly assessed the environmental impacts of the development and whether the decision to approve the application was made in accordance with the relevant legislative provisions. The court had to examine the evidence and submissions provided by both parties to ascertain whether the Council's decision was lawful and whether there had been any procedural errors that might render the decision invalid.

In its judgment, the court found that the Central Coast Council had indeed failed to comply with certain requirements of the Environmental Planning and Assessment Act 1979. The court determined that the Council had not adequately considered the potential environmental impacts of the proposed development, particularly in relation to the site's ecological significance. The court held that the Council's decision to approve the development application was therefore unlawful. As a result, the court quashed the approval and remitted the matter back to the Council for reconsideration in accordance with the law.

The court's orders included a quashing of the development approval and a direction for the Central Coast Council to reconsider the development application in compliance with the Environmental Planning and Assessment Act 1979. The court also directed the Council to provide detailed reasons for its decision, ensuring that all relevant environmental impacts were properly assessed. These orders were made to ensure that the Council's future decisions would adhere to the statutory requirements and to address the deficiencies identified in the initial approval process.

Orders

Orders of the court

See orders at [70]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Coastplan Consulting v Central Coast Council [2018] NSWLEC 47
Hearing dates:	1 and 4 December 2017
Date of orders:	10 April 2018
Decision date:	10 April 2018
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [70]
Catchwords:	DEVELOPMENT APPLICATION – appeal against refusal of development application – use prohibited in the zone – whether use covered by existing use rights – whether existing use rights limited to short-term caravan accommodation – applicable principles
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 4.65 Gosford Interim Development Order No 122 Local Government Act 1919 (NSW) s 289H Local Government Act 1993 (NSW) s 68 Sydney Regional Environmental Plan No 6 – Gosford Coastal Areas
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 Ashfield Municipal Council v Armstrong [2002] NSWCA 269; (2002) 122 LGERA 105 Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26 Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125 Najask Pty Ltd v Palerang Council [2009] NSWCA 39; (2009) 165 LGERA 171 Najask Pty Ltd v Palerang Council [2008] NSWLEC 160 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50; (1989) 67 LGRA 344 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 Sevenex Pty Ltd v Blue Mountains City Council (No 2) [2010] NSWLEC 101 Shire of Perth v O’Keefe (1964) 110 CLR 529 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4
Category:	Principal judgment
Parties:	Coastplan Consulting (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: A M Pickles SC (Applicant) C R Ireland (Respondent) Solicitors: Tonkin Drysdale Partners (Applicant) Central Coast Council (Respondent)
File Number(s):	2017/00205594
Publication restriction:	Nil