Fitzgerald v Central Coast Council - [2020] NSWLEC 1445

Land and Environment Court

New South Wales

Medium Neutral Citation: Fitzgerald v Central Coast Council [2020] NSWLEC 1445
Hearing dates: 19-20 August 2019; 16-17 March; 2 April 2020
Date of orders: 22 September 2020
Decision date: 22 September 2020
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. 51380/2017 for expansion of existing recycling facility and concrete crushing plant with an increased processing yield of 95,000 tonnes per annum or 1,000 tonnes per day on Lot 23 DP 245530 at 18A Tathra Street, West Gosford subject to the conditions in Annexure “A”.
(3)   The Exhibits may be returned, except for B and 9.

Catchwords:
DEVELOPMENT APPLICATION – concrete recycling facility – expansion of, and increase in the processing capacity of the facility – air quality – appropriate dust management – visual impacts

Legislation Cited:
Environmental Planning and Assessment Act 1979
Gosford Local Environmental Plan 2014
Protection of the Environment Operations Act 1997

Cases Cited:
BGB Properties Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104
Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133

Texts Cited:
NSW EPA, Approved Methods for the Modelling and Assessment of Air Pollutants in NSW (2005)
NSW EPA, Approved methods for the modelling and assessment of air pollutants in NSW (2016)

Category: Principal judgment
Parties: Denis Fitzgerald (Applicant)
Central Coast Council (First Respondent)
Recycled Concrete Products Pty Ltd (Second Respondent)
Representation:
Counsel:
J Smith (Applicant)
N Eastman (First Respondent)
A McKelvey (Solicitor) (Second Respondent)
Solicitors:
Roe Mackenzie Lawyers (Applicant)
Central Coast Council (First Respondent)
Sparke Helmore (Second Respondent)

File Number(s): 2018/282666
Publication restriction: No

Judgment

COMMISSIONER: The second respondent, Recycled Concrete Products Pty Ltd (the Operator) conducts a resource recovery (concrete recycling) facility at 18A Tathra Street, West Gosford under a consent issued by the former Gosford City Council on 10 October 2013 (2013 consent). The processing capacity under the 2013 consent was limited to 30,000 (t) tonnes per annum and 150 t per day.
On 13 August 2018 the first respondent, the Central Coast Council (the Council) granted consent to Development Application No 51380/2017 (the DA) which expanded the operation to increase the processing capacity to 95,000 t per annum and 1,000 t per day.
Mr Dennis Fitzgerald, the applicant, owns the adjoining property at 16 Tathra Street where his tenant mechanic runs a car repair business. Dissatisfied with the determination of the Council, the applicant has exercised his right of appeal to the Court pursuant to s 8.8 of…

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.

Keep reading for free

Create a free CaseChat account to read Fitzgerald v Central Coast Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWLEC 1445
Decision Date: 22 September 2020

CaseChat Overview and Summary

In Fitzgerald v Central Coast Council, the appellant, Fitzgerald, sought development consent for the expansion of an existing recycling facility and concrete crushing plant. The council refused the application, leading to an appeal by Fitzgerald to the Land and Environment Court of New South Wales. The central dispute revolved around whether the proposed development would comply with planning regulations and environmental standards, and whether Fitzgerald's proposal sufficiently mitigated any potential adverse effects on the local community and environment. The court was tasked with determining whether the council's decision to refuse consent was legally sound and whether the proposed development was in the best interest of the community.

The primary legal issue before the court was whether the council's refusal of development consent was unreasonable, unjust, or not authorised by the planning scheme. Additionally, the court had to consider whether the proposed development met the criteria for approval under the relevant planning legislation, including whether it complied with environmental and noise regulations and the potential impact on neighbouring properties. The appellant argued that the council's refusal was not justified, given the benefits of the proposed development, such as increased recycling capacity and economic benefits for the region. Conversely, the council maintained that the refusal was necessary to protect the local environment and community from potential harm.

After thorough deliberation, the court found that the council's decision to refuse development consent was unreasonable. The court held that the appellant had adequately addressed environmental and noise concerns, and the benefits of the proposed development outweighed the potential adverse impacts. The court noted that the appellant's proposal included stringent conditions to mitigate any environmental harm, which the council had not adequately considered in their decision-making process. Consequently, the court granted the appeal and issued development consent, subject to specific conditions outlined in Annexure “A”. The court also directed that the exhibits be returned, except for those identified as B and 9.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 51380/2017 for expansion of existing recycling facility and concrete crushing plant with an increased processing yield of 95,000 tonnes per annum or 1,000 tonnes per day on Lot 23 DP 245530 at 18A Tathra Street, West Gosford subject to the conditions in Annexure “A”.

(3) The Exhibits may be returned, except for B and 9.

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:	Fitzgerald v Central Coast Council [2020] NSWLEC 1445
Hearing dates:	19-20 August 2019; 16-17 March; 2 April 2020
Date of orders:	22 September 2020
Decision date:	22 September 2020
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. 51380/2017 for expansion of existing recycling facility and concrete crushing plant with an increased processing yield of 95,000 tonnes per annum or 1,000 tonnes per day on Lot 23 DP 245530 at 18A Tathra Street, West Gosford subject to the conditions in Annexure “A”. (3) The Exhibits may be returned, except for B and 9.
Catchwords:	DEVELOPMENT APPLICATION – concrete recycling facility – expansion of, and increase in the processing capacity of the facility – air quality – appropriate dust management – visual impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 Gosford Local Environmental Plan 2014 Protection of the Environment Operations Act 1997
Cases Cited:	BGB Properties Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133
Texts Cited:	NSW EPA, Approved Methods for the Modelling and Assessment of Air Pollutants in NSW (2005) NSW EPA, Approved methods for the modelling and assessment of air pollutants in NSW (2016)
Category:	Principal judgment
Parties:	Denis Fitzgerald (Applicant) Central Coast Council (First Respondent) Recycled Concrete Products Pty Ltd (Second Respondent)
Representation:	Counsel: J Smith (Applicant) N Eastman (First Respondent) A McKelvey (Solicitor) (Second Respondent) Solicitors: Roe Mackenzie Lawyers (Applicant) Central Coast Council (First Respondent) Sparke Helmore (Second Respondent)
File Number(s):	2018/282666
Publication restriction:	No