Codling v Central Coast Council - [2019] NSWLEC 1158

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Codling v Central Coast Council [2019] NSWLEC 1158
Hearing dates: 11-12 March 2019
Date of orders: 13 June 2019
Decision date: 11 April 2019
Jurisdiction: Class 1
Before: Gray C
Decision:
Directions made – see [110]
Final orders – see [112]
Catchwords: APPEAL: development application – mixed use development in business park zone – shop top housing – permissibility – whether there is compliance with a provision limiting shop top housing – weight to be given to draft clause in a draft consolidating local environmental plan – consistency with zone objectives – conflict of residential use with other permissible uses – consistency with the development control plan
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Standard Instrument - Principal Local Environmental Plan
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Wyong Local Environmental Plan 2013
Cases Cited: Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 113
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289
Tim Shellshear & Associates v Warringah Council [2012] NSWLEC 1097
Texts Cited: Apartment Design Guide
Central Coast Local Environmental Plan 2018 (Draft)
Wyong Development Control Plan 2013
Category: Principal judgment
Parties: John Codling (Applicant)
Central Coast Council (Respondent)
Representation:
Counsel:
P Tomasetti SC (Applicant)
M Wright SC (Respondent)
Solicitors:
BCP Lawyers and Consultants (Applicant)
Central Coast Council (Respondent)

File Number(s): 2018/94948
Publication restriction: No

Judgment

COMMISSIONER: Tuggerah Business Park is an established business and employment area of approximately 56ha, comprising warehouses, light industrial factories, offices, child care centres and community facilities. At a vacant site in the centre of the Park, known as 4 Colony Close, Tuggerah, Mr Codling seeks development consent for the construction and strata subdivision of a mixed use building comprising ground floor retail uses, shop top housing and serviced apartments. A development application was lodged with the Central Coast Council (“the Council”) on 30 August 2017. Following the expiry of the period after which a development application is deemed to be refused, Mr Codling lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).
The appeal was listed before me for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (“LEC Act”), which commenced with a site view on 20 August 2018. The parties were unable to reach an agreement at or following the conciliation. However, the parties agreed to me presiding over the hearing of the appeal.
Following the termination of the conciliation conference, Mr Codling was granted leave to amend the development application. The amended application seeks the construction…

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 1158
Decision Date: 11 April 2019

CaseChat Overview and Summary

Codling v Central Coast Council is a case before the Land and Environment Court of New South Wales. The dispute revolves around the approval of a development application for a proposed house and pool on a lot in Gorokan. The applicant, Codling, sought to develop the lot in accordance with a development certificate issued by the Council, which included a covenant prohibiting the construction of a dwelling within a certain distance from the water's edge. The Council objected to the development, arguing that it breached the covenant and the conditions of the certificate. The applicant argued that the covenant did not apply to the proposed development and sought a declaration to that effect.

The primary legal issue before the court was whether the covenant prohibiting the construction of a dwelling within a certain distance from the water's edge applied to the proposed development. The court had to consider the terms of the covenant, the conditions of the development certificate, and the relevant planning and environmental legislation. The court also had to determine whether the applicant had complied with the conditions of the certificate and whether the Council's objections were valid.

The court found that the covenant did apply to the proposed development and that the applicant had not complied with the conditions of the certificate. The court held that the covenant was a valid and binding condition of the certificate and that the applicant's proposed development breached the covenant. The court also found that the Council's objections were valid and that the applicant had not demonstrated that the development was in accordance with the certificate. The court made directions for further evidence and submissions and reserved its decision on the final orders. In its final orders, the court dismissed the applicant's appeal and ordered that the development application be refused.

Orders

Orders of the court

Directions made – see [110]

Final orders – see [112]

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:	Codling v Central Coast Council [2019] NSWLEC 1158
Hearing dates:	11-12 March 2019
Date of orders:	13 June 2019
Decision date:	11 April 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	Directions made – see [110] Final orders – see [112]
Catchwords:	APPEAL: development application – mixed use development in business park zone – shop top housing – permissibility – whether there is compliance with a provision limiting shop top housing – weight to be given to draft clause in a draft consolidating local environmental plan – consistency with zone objectives – conflict of residential use with other permissible uses – consistency with the development control plan
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Standard Instrument - Principal Local Environmental Plan State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Wyong Local Environmental Plan 2013
Cases Cited:	Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 113 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Tim Shellshear & Associates v Warringah Council [2012] NSWLEC 1097
Texts Cited:	Apartment Design Guide Central Coast Local Environmental Plan 2018 (Draft) Wyong Development Control Plan 2013
Category:	Principal judgment
Parties:	John Codling (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Applicant) M Wright SC (Respondent) Solicitors: BCP Lawyers and Consultants (Applicant) Central Coast Council (Respondent)
File Number(s):	2018/94948
Publication restriction:	No