Joint Venture Pty Ltd v Mid-Coast Council - [2021] NSWLEC 1138

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Joint Venture Pty Ltd v Mid-Coast Council [2021] NSWLEC 1138
Hearing dates: 2, 3, 4, 7 September, 12,13 October 2020, Written Submissions 24 November, 11 December 2020, 25 January, 3, 22 February 2021.
Date of orders: 17 March 2021
Decision date: 17 March 2021
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
1. The appeal is dismissed
2. Development Application No, DA99/2019 for development of Lot 3 DP 242332, 303 Blackhead Road Tallwoods, for the purpose of a manufactured home estate is refused
3. The exhibits are returned with the exception of Exhibits 2, D, P and K.

Catchwords:
DEVELOPMENT APPEAL – Manufactured Home Estate – Permissibility – Innominate use – Site contamination – Biodiversity Development Assessment Report – avoidance, mitigation and offsetting of impacts on flora and fauna – adequacy of biodiversity assessment – intensity of development – visual impact – reasonableness of impacts arising from the development – character – public interest – appeal dismissed – development refused.

Legislation Cited:
Biodiversity Conservation Act 2016, cll 6.3, 6.2, 6.12, 7.7, 6.23, 7.13, Part 6 Div 2
Environmental Planning and Assessment Act 1979, ss 8.9, 4.13, 3.28(1), 7.13, 4.16
Greater Taree Local Environmental Plan 2010
Local Government Act 1993, s 68
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwelling) Regulation 2005, Part 2, cl 6
NSW Complying Development Code
Rural Fires Act 1997, s 100B
State Environmental Planning Policy 36: Manufactured Home Estates, cll 6, 9, Sch 2
State Environmental Planning Policy 44 (Koala Protection) 2019
State Environmental Planning Policy (Infrastructure) 2007, cl. 8(1), cl 111A
State Environmental Planning Policy (Koala Habitat Protection) 2020, Sch 1, cll 20, 8, 9, 10
State Environmental Planning Policy No 21—Caravan Parks
State Environmental Planning Policy No 55 – Remediation of Land, cl 7
State Environmental Planning Policy (Seniors Living) 2004
State Environmental Planning Policy 44 (Koala Protection) 2019

Cases Cited:
Abret v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107
Argyopoulos v Canterbury Municipal Council (1988) 66 LGERA 202
Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
Camberlee Investments Pty Ltd v Shoalhaven City Council [2017] NSWLEC 1585
Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102
Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160
Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7
HP Subsidiary Pty Ltd v City of Parramatta [2020] NSWLEC 135
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146
Parkes v Byron Shire Council (2003) 129 LGERA 156;

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: [2021] NSWLEC 1138
Decision Date: 17 March 2021

CaseChat Overview and Summary

Joint Venture Pty Ltd sought to appeal a decision of the Mid-Coast Council to refuse its development application for the establishment of a manufactured home estate on Lot 3 DP 242332, 303 Blackhead Road, Tallwoods. The case came before the Land and Environment Court of New South Wales for determination.

The central issue before the court was whether the Council's refusal of the development application was lawful. Specifically, the court had to examine whether the Council's decision was based on the relevant statutory criteria and whether it was supported by proper consideration of the evidence. The applicant argued that the refusal was unreasonable and that the evidence did not support the Council's findings.

The court found that the Council's decision was lawful and properly supported by the evidence. The Council had correctly applied the statutory criteria and had properly considered all relevant factors. The court held that the evidence demonstrated that the development would have significant adverse environmental impacts and would not be compatible with the surrounding area. The court was satisfied that the Council's decision was not unreasonable and dismissed the appeal. The development application was also refused.

Orders

Orders of the court

The Court orders that:

1. The appeal is dismissed

2. Development Application No, DA99/2019 for development of Lot 3 DP 242332, 303 Blackhead Road Tallwoods, for the purpose of a manufactured home estate is refused

3. The exhibits are returned with the exception of Exhibits 2, D, P and K.

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:	Joint Venture Pty Ltd v Mid-Coast Council [2021] NSWLEC 1138
Hearing dates:	2, 3, 4, 7 September, 12,13 October 2020, Written Submissions 24 November, 11 December 2020, 25 January, 3, 22 February 2021.
Date of orders:	17 March 2021
Decision date:	17 March 2021
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: 1. The appeal is dismissed 2. Development Application No, DA99/2019 for development of Lot 3 DP 242332, 303 Blackhead Road Tallwoods, for the purpose of a manufactured home estate is refused 3. The exhibits are returned with the exception of Exhibits 2, D, P and K.
Catchwords:	DEVELOPMENT APPEAL – Manufactured Home Estate – Permissibility – Innominate use – Site contamination – Biodiversity Development Assessment Report – avoidance, mitigation and offsetting of impacts on flora and fauna – adequacy of biodiversity assessment – intensity of development – visual impact – reasonableness of impacts arising from the development – character – public interest – appeal dismissed – development refused.
Legislation Cited:	Biodiversity Conservation Act 2016, cll 6.3, 6.2, 6.12, 7.7, 6.23, 7.13, Part 6 Div 2 Environmental Planning and Assessment Act 1979, ss 8.9, 4.13, 3.28(1), 7.13, 4.16 Greater Taree Local Environmental Plan 2010 Local Government Act 1993, s 68 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwelling) Regulation 2005, Part 2, cl 6 NSW Complying Development Code Rural Fires Act 1997, s 100B State Environmental Planning Policy 36: Manufactured Home Estates, cll 6, 9, Sch 2 State Environmental Planning Policy 44 (Koala Protection) 2019 State Environmental Planning Policy (Infrastructure) 2007, cl. 8(1), cl 111A State Environmental Planning Policy (Koala Habitat Protection) 2020, Sch 1, cll 20, 8, 9, 10 State Environmental Planning Policy No 21—Caravan Parks State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Seniors Living) 2004 State Environmental Planning Policy 44 (Koala Protection) 2019
Cases Cited:	Abret v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 Argyopoulos v Canterbury Municipal Council (1988) 66 LGERA 202 Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Camberlee Investments Pty Ltd v Shoalhaven City Council [2017] NSWLEC 1585 Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 HP Subsidiary Pty Ltd v City of Parramatta [2020] NSWLEC 135 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 Parkes v Byron Shire Council (2003) 129 LGERA 156;