Ladehai Pty Ltd v Tweed Shire Council

[2018] NSWLEC 1016

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ladehai Pty Ltd v Tweed Shire Council [2018] NSWLEC 1016

Hearing dates:

10-11 May 2017 and 8 June 2017

Date of orders:

02 March 2018

Decision date:

23 January 2018

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The orders of the Court are:

(1)     The Applicant is granted leave to rely on amended plans;

(2)     The appeal is upheld;

(3)     Development application DA15/1064 for the redevelopment of a waterslide playground within the North Star Holiday Resort and Caravan Park at 1-3 Tweed Coast Road, Hastings Point, including the removal of two slides and their replacement with two enclosed slides, is determined by the grant of consent, subject to the conditions provided at Annexure ‘A’.

(4)     The exhibits are returned, with the exception of Exhibit 1.  

Catchwords:

Development Application: replacement of a water slide facility; acoustic impacts, traffic impacts; planning and landscape impacts; design of acoustic barriers; condition imposed for public interest.

Legislation Cited:

Coastal Protection Act 1979
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Protection of the Environment Operations Act 1997
Tweed Local Environment Plan 2014

Cases Cited:

Botany City Council and Saab Corporation Pty Ltd [2011] NSWCA 308
Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
TL & TL Pty Ltd v Parramatta City Council [2016] NSWLEC 150

Texts Cited:

NSW EPA Noise Guide for Local Government 2013
NSW Industrial Noise Policy 2000
NSW Industrial Noise Policy 2011
Tweed Development Control Plan 2008

Category:

Principal judgment

Parties:

Ladehai Pty Ltd (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:

 

A. Gadiel (Applicant)
A. Pickles (Respondent)

   

Solicitors:

  Mills Oakley (Applicant)
DLA Piper (Respondent)

File Number(s):

2016/365701

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Ladehai Pty Ltd (the Applicant) has appealed a decision of Tweed Shire Council (the Respondent) to refuse its development application (DA15/1064) for the redevelopment of a waterslide playground within the North Star Holiday Resort and Caravan Park (the caravan park), including the removal of two slides and their replacement with two enclosed slides.

2. The appeal is made pursuant to section s97(1) of the Environmental Planning note and Assessment Act 1979 (EP&A Act).

3. The proposed development is located within the caravan park at 1-3 Tweed Coast Road, Hastings Point. The site formally referred to as Lot 1 in DP 1014298 (the Subject Site).

4. The area within the Subject Site that is the location for the proposed development includes a restaurant, waterslide playground with water play features, including a pool with two slides and a separate pool (the water park facility).

5. A service station is located at the southern end of the Subject Site.

6. The opposite, eastern, side of Tweed Coast Road is occupied by residential development within an area zoned R3 Medium Density Residential. To the north of this residential area is a large area of native vegetation which is generally in good condition and which serves to separate the road from the beach at Hastings Point.

7. Leave was granted to the Applicant to rely on amended plans that formed part of the expert report of Mr Jim Glazebrook. These superseded amended plans that had been filed with the Court in an affidavit filed by Ms Kalinda Doyle on 23 December 2016, and for which leave had previously been granted .

8. The proposed development is for alterations and additions to be made within the water park facility of the caravan park, including:

1. the retention of the existing pool and water tipping/spray facility known as the Big Dipper, located adjacent to the waterslide area;

2. the replacement of the existing 3m high waterslide by two longer, and higher, waterslides, involving the installation of a new structure, to a height of 10m, that would include:

1. an elevated platform at 8.2m above ground level;

2. an acoustic screen attached to that elevated platform which would extend a further 1.8 m above the platform

3. two coloured fibreglass tubes that would provide the waterslide feature;

4. a balance tank and associated equipment for the facility that would be located below ground.

9. The elevated platform structure would be located 3.18m inside the boundary of the Subject Site on Tweed Coast Road.

10. The development would require removal of trees to facilitate the installation of the balance tank equipment and to provide a vegetated setback zone for landscaping purposes.

Objector submissions

11. An inspection of the Subject Site was undertaken as part of the hearing, during which submissions were received from the following three objector resident from properties located opposite the caravan park, and across Tweed Coast Road:

1. Mr Graham Papworth;

2. Mr Geoff Hardcastle;

3. Ms Eloise McGilligan.

12. The concerns of the objectors, reflected in their written submissions, related to the potential of the proposed development to give rise to impacts in respect of the following:

1. Noise – the objectors were concerned that the redevelopment of the water park facility, including the increased size and height of the water slides, and the increased use of the facility by residents and day visitors, would increase noise impacts on, and reduce the amenity of, local residents;

2. Ecology – the objectors were concerned that increased noise levels from the redeveloped water park would impact on wildlife using the natural vegetation areas around Hastings Point;

3. Character and streetscape - the objectors were concerned that a combination of increased visitor traffic, along with the greater bulk of the redeveloped water park, would be detrimental to the desired future character of Hastings Point, including the streetscape of the area. They said that this would reduce the visual amenity enjoyed by local residents from their residences located opposite the water park facility;

4. Roads/parking/traffic use – the objectors were concerned that the redeveloped water park facility would attract an increase in day visitors to the caravan park and so generate increased traffic within Hastings Point. They noted that this would increase parking demand in the area and may create congestion in road side areas near to the caravan park

5. Risk - the objectors were concerned that increased levels of traffic in Hastings Point arising from the proposed development would elevate the risks associated with pedestrian movement around Hastings Point;

6. Tourism - the objectors were concerned that the size and design of the proposed water park facility was out of keeping with the character of Hastings Point, and so would be detrimental to the broader tourism value of the area.

Statutory considerations

Environmental Planning and Assessment Act 1979

13. Section 79C(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) states:

“79C Evaluation

(1) Matters for consideration--general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.”.

14. Section 79C(3A) of the EP&A Act provides

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

15. Section 74BA of the EP&A Act defines the purpose of a development control plan (DCP) as follows:

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development:

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

(2) The other purpose of a development control plan is to make provisions of the kind referred to in section 74C(1) (b)–(e).

(3) Subsection (1) does not affect any requirement under Division 3 of Part 4 in relation to complying development.

16. Section 79D of the EP&A Act, provides (inter alia) that:

(1) An environmental planning instrument may require or permit a development control plan to be prepared before any particular development or kind of development may be carried out (and make provision with respect to the preparation and content of any such plan).

(2) Any such development control plan may outline the development of all the land to which it applies

Tweed Local Environment Plan 2014

17. Development on the Subject Site is subject to the Tweed Local Environment Plan 2014 (TLEP 2014).

18. Under TLEP 2014, the Subject Site is zoned RE2 – Private Recreation. The objectives of this zone are to:

• enable land to be used for private open space or recreational purposes.

• provide a range of recreational settings and activities and compatible land uses.

• protect and enhance the natural environment for recreational purposes.

19. The proposed development is permissible within this zone.

20. Clause 4.3 of TLEP 2014 provides height controls that are applicable to the Subject Site.

(1) The objectives of this clause are as follows:

(a) to establish the maximum height for which a building can be designed,

(b) to ensure that building height relates to the land’s capability to provide and maintain an appropriate urban character and level of amenity,

(c) to ensure that taller development is located in more structured urbanised areas that are serviced by urban support facilities,

(d) to encourage greater population density in less car-dependant urban areas,

(e) to enable a transition in building heights between urban areas comprised of different characteristics,

(f) to limit the impact of the height of a building on the existing natural and built environment,

(g) to prevent gross overshadowing impacts on the natural and built environment.

5 would to building

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

21. The Height of Buildings Map provides that a 10m height control applies to that portion of the Subject Site on which the water park facility is located.

22. TLEP 2014 says that a ‘building’ has the same meaning as that within the EPA Act, which itself defines a building as including:

… part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.

23. The proposed development is for a waterslide and associated structures, which would fall within the definition of a ‘building’ for the purposes of TLEP2014. Consequently, the 10m height control established under TLEP 2014 for buildings would apply to the proposed water slide structure.

24. Claude 5.5 of TLEP 2014 provides controls in relation to Development in the Coastal Zone within the Tweed Shire.

25. The ‘coastal zone’ is defined in the Coastal Protection Act 1979 and is accompanied by a set of statutory maps which identify its extent. Outside the Sydney region the coastal zone extends from approximately 1km inland of any coastline, bay, estuary, lake or lagoon out to the 3 nautical mile extent of NSW state waters.

26. The Subject Site falls within the coastal zone and so is subject to the provisions of cl5.5 of TLEP 2014.

27. The objectives of this clause are set out in cl5.5(1), which provides:

(a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development,

(b) to implement the principles in the NSW Coastal Policy, and in particular to:

(i) protect, enhance, maintain and restore the coastal environment, its associated ecosystems, ecological processes and biological diversity and its water quality, and

(ii) protect and preserve the natural, cultural, recreational and economic attributes of the NSW coast, and

(iii) provide opportunities for pedestrian public access to and along the coastal foreshore, and

(iv) recognise and accommodate coastal processes and climate change, and

(v) protect amenity and scenic quality, and

(vi) protect and preserve rock platforms, beach environments and beach amenity, and

(vii) protect and preserve native coastal vegetation, and

(viii) protect and preserve the marine environment, and

(ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

(x) ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and

(xi) protect Aboriginal cultural places, values and customs, and

(xii) protect and preserve items of heritage, archaeological or historical significance.

28. The clause also requires that:

(2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered:

(a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to:

(i) maintaining existing public access and, where possible, improving that access, and

(ii) identifying opportunities for new public access, and

(b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account:

(i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and

(ii) the location, and

(iii) the bulk, scale, size and overall built form design of any building or work involved, and

(c) the impact of the proposed development on the amenity of the coastal foreshore including:

(i) any significant overshadowing of the coastal foreshore, and

(ii) any loss of views from a public place to the coastal foreshore, and

(d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and

(e) how biodiversity and ecosystems, including:

(i) native coastal vegetation and existing wildlife corridors, and

(ii) rock platforms, and

(iii) water quality of coastal waterbodies, and

(iv) native fauna and native flora, and their habitats,

can be conserved, and

(f) the cumulative impacts of the proposed development and other development on the coastal catchment.

Tweed Development Control Plan 2008 (TDCP 2008).

29. Development on the Subject Site is subject to the Tweed Development Control Plan 2008 (TDCP 2008).

30. The Hastings Point Locality-based Development Code (the Code), which is section B23 of TDCP 2008, provides Council’s framework for managing growth and development in Hastings point over the 25 year period from 2008.

31. It includes a vision statement for Hastings Point, along with precinct specific strategies for areas within Hastings Point, including for Peninsula Street and the Northern Entry, in which precinct the Subject Site is located. The precinct strategies provide direction on the desired future character of each precinct and controls in support of achieving that character outcome.

32. The controls are provided in section 4.1.3 of the Code, with objectives provided in section 4.3.1.2. These support development in urban zoned land, such as the Subject Site that ensures:

a. Cohesive high-quality development that reinforces the character of a small coastal settlement specific to Hastings point

b. Buildings respond to the natural environment, environmental conditions and provide quality places to live, work and visit:

33. The controls include:

1. section 4.1.3.3, which provides general controls for development within the Peninsula Street and Northern Entry Precinct, and which includes a requirement that:

4. Developments are to comply with Tweed DCP Section A2 Site Access and Parking Code, and the Carparking and Access controls in Part 6 of this document

2. section 4.1.3.4, which provides controls in relation to caravan parks;

3. section 4.1.3.5, which provides controls in relation to commercial lots.

34. TDCP 2008 does not provide guidance for the assessment and mitigation of potential noise impacts of development, nor on their control in the operation of a development.

Noise Guide for Local Government 2013

35. The Tweed Shire Council relies on the NSW Environmental Protection Authority’s 2013 Noise Guide for Local Government (NSW EPA Noise Guide), for guidance in the assessment of potential noise impacts arising from development applications.

36. The NSW EPA Noise Guide notes that acoustic reports have an important role to play in the assessment of noise impacts within development applications, and that the NSW Industrial Noise Policy (DECCW 2011) provides detailed guidance on areas that need to be covered within such reports.

NSW Industrial Noise Policy

37. The NSW Industrial Noise Policy 2000 (INP) and its successor versions including the Industrial Noise Policy 2011 provide a formal process to assist in the determination of feasible and reasonable noise limits, associated with the issuing of consents and licences that reconcile noise impacts with economic social and environment considerations of industrial development.

38. The INP was designed for large and complex industrial sources, and specifies substantial monitoring assessment procedures for such developments,

39. While the INP notes that it may not always be applicable to the types of sources that councils need to address, it also says that local governments may find the policy of use in carrying out their land use planning responsibilities.

Contentions

40. At the commencement of the hearing the Parties advised that the contentions between them fell into three groups that would each be subject of expert testimony. These were:

1. Noise, in which the principal question to be resolved is:

1. Are the noise and related amenity impacts of the proposed development acceptable?

2. Traffic, in which the principal question to be resolved is:

1. Are the potential traffic impacts of the proposed development acceptable in relation to:

1. compliance with the requirements of TDCP 2008?

2. parking in the locality of the Subject Site?

3. the caravan park’s proposed plan for management for parking associated with the park?

3. Planning, in which the principal question to be resolved is:

1. Are the potential impacts of the proposed development on the character and streetscape of Hastings Point acceptable in relation to:

1. its appearance, including bulk and height?

2. the proposed screening and landscaping treatments?

3. the potential for independent use of the water park by visitors, rather than residents, of the caravan park?

Are the noise and related amenity impacts of the proposed development acceptable?

41. Expert testimony concerning the potential noise impacts of the proposed development was provided by Mr Steven Cooper for the Applicant and Mr Neill Gross for the Respondent.

42. The noise experts had prepared a joint report that was tendered as evidence during the hearing, and which drew on an acoustic assessment prepared by ATP Consulting Engineers (ATP) in March 2015, and updated in August 2016 in response to clarifications sought by the Respondent.

43. The noise experts agreed that TDCP 2008 provided no guidance as to the assessment and mitigation of noise impacts arising from proposed developments within Tweed Shire.

44. Mr Gross said that, as noted above at [35] to [36], Tweed Shire Council relies on the NSW EPA Noise Guide and the INP to guide its assessment of the potential noise impacts of development proposals.

45. There was a difference of opinion between the noise experts as to whether the INP and its provisions should be applied to the proposed development.

46. Mr Cooper said that the INP had been developed for the purpose of assessing and managing noise associated with industrial noise sources and that this was a different circumstance to the focus of the current appeal.

47. Mr Gross said that the INP is called up by the EPA Noise Guide, which itself was developed to provide guidance to Councils in the assessment of development applications, and in situations where Councils did not have their own noise policies, as was the case in the current appeal.

48. In support of this opinion, Mr Gross drew the Court’s attention to section 3.1.6 of the EPA Noise Guide (Acoustic reports as a noise planning tool) which states that the INP provides:

.. detailed guidance on areas that need to be covered in an acoustic report.

49. Further, the Applicant noted that, notwithstanding the opinion of Mr Cooper as to the primary purpose of the INP, the INP also stated in section 1.2 (Scope of the policy) that:

Local government may find the policy helpful in the carrying-out of its land-use planning responsibilities (for example, the setting of targets in local and regional environmental plans).

50. Having considered the submissions of the Parties, along with the testimony of the noise experts, I accept the Respondent’s submission, supported by the testimony of Mr Gross, that in the absence of a specific noise control in the TDCP, the Court should adopt Council’s approach of using the EPA’s noise guide, which is specifically developed for circumstances such as this and which does recommend use of the noise assessment procedures within the INP.

51. The Respondent noted that the NSW EPA Noise Guide distinguishes between the offensive noise and intrusive noise, and relies on the definitions of these noise types within the Protection of the Environment Operations Act 1997 (POEO Act) and the NSW EPA Noise Guide respectively to identify noise that may fall within these categories, as follows:

1. Offensive noise is defined in the POEO Act 198 as noise:

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:

(i) is harmful to(or is likely to be harmful to) a person who is outside the premises from which it is omitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort all repose of a person who is outside the premises from which the noise is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.

2. Intrusive Noise is defined under the NSW EPA Noise Guide as noise that is noticeably louder than the background noise and considered likely to disturb or interfere with those who can hear it, and says that intrusive noise would not automatically be considered offensive.

52. The NSW EPA Noise Guide further notes that the INP defines intrusive noise as being noise that is measured to be 5dB above the background noise level.

53. The Applicant noted that, in correspondence tendered as evidence during the hearing, Council had indicated that the noise generated by the current water park facility was not considered to be offensive noise as defined under the POEO Act.

54. It was the agreed position of the Parties, supported by the testimony of the noise experts, that:

1. whilst the noise generated from the current operation of the water park was not categorised as offensive, it would be considered intrusive under the EPA Noise Guide;

2. the NSW EPA Noise Guide also says that when noise is a problem there is a general expectation that whoever is creating the noise should take all reasonable and feasible measures to minimise the noise;

3. the INP notes in section 1.4 (Applying the policy) that the processes outlined within the INP can assist in achieving a balance between the establishment and operation of industrial activities and the protection of the community from noise levels that are intrusive or unpleasant. This includes considering feasible and reasonable noise mitigation strategies where project specific noise levels are exceeded.

55. The Applicant noted that under section 1.4.5 of the INP, it is recommended that:

1. where noise impacts are predicted, noise source managers should seek to achieve the applicable criteria by applying feasible and reasonable mitigation measures;

2. the feasibility of mitigation measures will relate to the engineering considerations and what can practically be built;

3. the reasonableness of such measures relates to the application of judgement taking into account a number of factors including community views, including views on aesthetic impacts and community wishes.

56. The experts said that the INP sets out, within its chapter 10, a methodology for applying the policy to existing ’industrial premises’, and specifies:

1. within section 10.1.1, the steps that should be taken in relation to this;

2. within in section 10.3 (Noise reduction strategies through existing sites) that the range of instruments that are available for application in the management of noise on existing sites is limited, and recommends that operational procedures and immediate cost-effective measures that can minimise noise, with minimal impact on the noise source, should be identified and implemented.

57. In Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 at [25] and [26] Commissioner Tuor proposed a principle for assessment of an extension or intensification of the use which may have an adverse impact on residential amenity. This two-step planning principle requires that two questions be addressed:

1. First, is the impact of the operation of the existing use on residential amenity acceptable?

1. If the answer to this question is ‘no’ then an extension or intensification would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact;

2. if the answer to the question is ‘yes’, is the impact of the proposed extension or intensification still acceptable?

58. In relation to the current proposed development, the parties agreed, supported by the evidence of the noise experts, that the current operation of the water park did produce noise impacts that were intrusive, although not offensive, and that these levels exceeded the noise standards recommended in the INP.

59. Mr Cooper noted that the dominant noise generated by the water park operations was from the splashing of water. The experts also said that this noise was exceeded by the noise of car movements though the Hastings Point area as they passed the caravan park.

60. The experts agreed that the proposed installation of a 1.8m acoustic barrier at the level of the raised access platform for the proposed water slide would be important to manage the ‘excitement level’ of noise associated with that new facility. They also agreed that, with this design element included, the proposed development would not generate noise that was significantly different to that already produced by the operation of the water park, and so would not increase the impact of noise on the amenity of residents. This was accepted by the Parties.

61. Applying the assessment principle in Randall v Leichhardt Council discussed above at [57], as there would be no overall increase in noise impact as a result of the proposed development the proposed development should be acceptable in terms of noise impact.

62. The Parties submitted that, because the proposed development did not increase the noise levels beyond those of the existing, approved, water park facility, the Court could not refuse consent for the proposed development on the basis of noise, and I accept this agreed position.

63. However, the Respondent said that, should the proposed development be approved, it was within the power of the Court to require that a further condition of consent be imposed to ameliorate the noise impacts generated by the water park facility, so as to improve the amenity of residents living near to the facility.

64. It support of this submission, the Respondent noted the decision in the case of Botany City Council and Saab Corporation Pty Ltd [2011] NSWCA 308, in which Basten JA, sitting with Macfarlane JA and Tobias AJA, had found that:

‘Improvement to the amenity of the area immediately adjacent to the development is a proper subject of an approval’….

The Respondent noted that such an approach would also be consistent with the provisions of the Chapter 10 of the INP which supported the reasonable and feasible upgrade of an existing facility to improve the amenity of the area by providing for the shielding of noise at source.

65. The experts noted that ATP Consulting in its April 2017 report had recommended that the installation of a 2.8m noise barrier at ground level along the boundary of the water park facility would reduce intrusive noise levels from the operation of the water park such that noise generated not exceed the criteria for intrusive noise set in the INP.

66. The Applicant said that it would not resist a condition to require the installation of a noise wall such as that recommended by ATP Consulting, but noted that such as structure would have visual impact on the streetscape and character of the area.

67. Based on the above submissions, including the evidence of the noise experts, I have am satisfied that:

1. the noise impacts of the existing water park facility operation within the caravan park is of an intrusive level, but this arises from an existing use which has a valid consent;

2. there is no specific control within the TLEP 2008 against which to assess the potential noise impacts of the proposed development;

3. the predicted noise levels from the proposed development will be less than 1dB above current levels and so will not significantly increase the noise impacts of the facility, which will remain intrusive.

68. Given [67(3)], and consistent with the submissions of the Parties, I conclude that consent for the proposed development should not be refused on the basis of its potential noise impacts.

69. In relation to the Respondent’s proposition that the Court might provide a condition requiring the installation of an additional 2.8m noise barrier at ground level to mitigate the intrusive noise impacts of the water park facility, I note the submission of the Parties that this proposal could have potential visual impacts. Consequently, I leave consideration of this matter until after I have addressed planning issues, including those of character and streetscape (see below at [137] and following).

Are the potential traffic impacts of the proposed development acceptable in relation to the provisions of TDCP 2008, locality issues and the management of parking?

70. Expert testimony on traffic matters was provided by Mr Adrian Bitzios for the Applicant and Mr Craig McLaren for the Respondent. A joint report of the traffic experts was also tendered during the hearing.

71. Mr Graham Papworth, a resident objector who made a submission during the hearing, expressed concern that the formal parking provided by the caravan park was not sufficient to cater for the current patronage of the water park facility, and that this would be exacerbated should the proposed development receive consent. He noted that, in his opinion, the surrounding street environment suffered from parking congestion in peak periods.

Is the parking provided by the caravan park compliant with the requirements of TDCP 2008?

72. As noted at [33(1)], Tweed DCP 2008 section A2 (Site Access and Parking Code), along with the Carparking and Access controls in Part 6 of the Hastings Point Code set out the parking capacity to be provided by the caravan park.

73. Both Mr Bitzios and Mr McLaren agreed that the car parking provided by the caravan park, which totals 446 spaces, including 39 spaces outside the entry gate to the caravan park, meets the requirements of TDCP 2008.

What actions should the proponent take to manage parking in the locality of the Subject Site?

74. During the hearing the experts agreed that parking outside of the entry gates to the caravan park, and in the surrounding areas, was constrained. The experts had identified, in testimony and in their joint report, that these constraints reflected concerns expressed by residents, and were consistent with their personal observations of parking constraints in the area of the Subject Site.

75. The experts confirmed that these concerns derived from factors such as vehicle parking on the road verges near the caravan park, the use of visitor parking at the caravan park by non-visitors, vehicles being parked across fire access paths, and the limited parking provided by Council for the nearby beach.

76. The experts agreed in their joint report that parking congestion occurred in the area around the caravan park during the peak seasonal visitation periods, and that the sources of this congestion has not been validated nor quantified.

77. Nevertheless, the experts also agreed that a principal challenge in managing parking associated with the proposed development would be managing off-site parking, which would be largely associated with short stay visitors to the water park facility who would be guests of caravan park residents.

78. The traffic experts also agreed that, should the proposed development receive consent, the effective management of such off-site parking would be facilitated by the inclusion of a condition of consent which would place a limit on the number of guests that a resident of the caravan park could seek to bring into the caravan park at any point in time.

79. The traffic experts proposed that such a condition should permit the entry of no more than one visitor family per occupied caravan park site, with the size of that visitor family party to be limited to one set of parents and their children.

80. The experts further recommended that the owners of the caravan park install additional signage to facilitate the correct use of parking provided by the caravan park.

81. Mr Bitzios proposed, and Mr McLaren agreed, that should the Court grant consent to the proposed development the following further conditions should form part of any consent:

1. signage is to be installed and maintained to identify that the car spaces fronting the caravan park are on private property and are only for the use of visitors to the caravan park, with additional messaging to be provided on the signage warning of possible ‘vehicle tow away’ in the event of a breach of this use condition;

2. designated staff parking within the service station must be signed and line marked accordingly;

3. the visitor parking for the service station must be signed and line marked accordingly, identifying these spaces as short stay (15 minutes), time-restricted bays;

4. the proponent must inform customers of the caravan park that parking on the public verge of local roads is illegal and may result in a fine.

82. Mr McLaren noted, and Mr Bitzios concurred, that it was desirable that further action should be taken by Tweed Shire Council within the vicinity of the caravan park to improve the management of traffic and parking in that locality.

Is the caravan park’s proposed plan for management acceptable?

83. In their joint report, the traffic experts agreed that procedures for managing parking associated with the caravan park, including that associated with any ancillary elements such as the water park facility, should be documented within the proposed plan of management for the water park facility.

84. A draft plan of management, prepared by Jim Glazebrook and Associates, had been tendered within the traffic expert’s joint report.

85. The traffic experts agreed that the adoption and implementation of the draft plan of management, amended to reflect the condition proposed at [81(4)], should be included as a condition should the proposed development receive consent.

86. Within the traffic experts’ joint report, Mr McLaren drew the Court’s attention to the eight part framework provided in the case of Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 for determining whether a management plan is appropriate for a particular use and situation.

87. Applying this framework to the proposed draft plan of management in this case, and mindful of the findings of Moore J in the case of TL & TL Pty Ltd v Parramatta City Council [2016] NSWLEC 150 that plans of management should have a presumption of compliance, I am satisfied that six of the framework’s eight parts are adequately addressed within the draft. These are:

1. the plan of management explicitly relates to the Subject Site and the proposed development, and will complement the conditions of approval (see also [88] and [89] below);

2. the requirements of the plan of management in relation to parking in the locality of the caravan park will not require people to act in any manner that this unlikely or unreasonable in the circumstances of the proposed development;

3. it will be possible to identify the sources of any breaches of the plan of management such that enforcement action can be taken, if required, either by management of the caravan park, or Council if the breach is by the caravan park operators themselves;

4. the plan of management doesn’t require absolute compliance to achieve acceptable outcomes, as broad compliance, in my view, will deliver the outcomes that the plan seeks to facilitate in terms of better regulation of parking around the caravan park locality;

5. individuals who are the subject of the plan of management, notably residents and visitors to the caravan park, could reasonably be expected to know its requirements as they will be alerted to this upon entry to the caravan park;

6. the plan of management would be included as a condition of consent for the proposed development;

88. However, I find that two of the framework elements identified by the Commissioner in Renaldo are not addressed in the draft plan of management, as the draft does not contain:

1. a complaint management procedure; and

2. a procedure for updating or changing the plan of management, including the advertising of any changes that are made.

89. Consequently, I conclude that the draft plan of management should be amended to include the establishment of a complaint management procedure and to define a procedure for updating or changing the plan, including the advertising of any such changes.

90. With these changes I am satisfied that the proposed plan of management would be reasonable, enforceable, practical and workable.

Conclusion re parking and traffic

91. Based on the evidence of the traffic experts, including their recommendations concerning conditions of consent, I have concluded that:

1. the car parking provided by the caravan park meets the requirements of TDCP 2008;

2. any consent should include the following conditions:

1. the number of visitors of temporary residents of the caravan park will be limited so as to permit no more than one visitor family per occupied caravan park site, with the size of that visitor family party to be limited to one set of parents and their children;

2. signage is to be installed and maintained to identify that the car spaces fronting the caravan park is on private property and only for the use of visitors to the caravan park, with additional messaging on the signage warning of possible vehicle tow away;

3. designated staff parking within the service station must be signed and line marked accordingly

4. the visitor parking for the service station must be signed and line marked accordingly, identifying them as short stay (15 minutes), time-restricted bays;

5. the Applicant must inform customers of the caravan park that parking on the public verge of public roads is illegal and may result in a fine.

6. the Applicant will implement the draft plan of management for traffic as recommended by the traffic experts amended to include:

1. the condition proposed at [81(4)],

2. the establishment of a complaint management procedure, and

3. a procedure for updating or changing the plan, including the advertising of any such changes.

92. Based on the above, I further conclude that the potential traffic impacts of the proposed development are acceptable, and should not be used as basis for refusal of the application.

Are the potential planning impacts of the proposed development, including impacts on the character and streetscape of Hastings Point, acceptable?

Background

93. As noted at [30], the Parties identified in opening that the Hastings Point Locality-based Development Code (the Code) within TDCP 2008, provides Council’s framework for managing growth and development in Hastings Point over the 25 year period from 2008.

94. The Parties drew the Court’s attention to Part 3 of that Code which provides Council’s vision for Hastings Point, and which notes that Hastings Point will serve as a coastal holiday destination and residential location. The Parties also highlighted the following specific comments from that vision in Part 3 of the Code:

1. the buildings [of Hastings Point] are to reflect coastal architecture styles and the design of areas around buildings and to contribute to the natural and green qualities of streets and laneways, and the Tweed Coast Road;

2. Hastings Point will continue to provide only basic services including a general store, post office and restaurants, several shops and no larger retail outlets or supermarkets;

3. the caravan parks and camping areas within Hastings Point are important uses and should be retained.

95. The Parties also drew to the Court’s attention section 3.2.4 of the Code which provides guidance in relation to scenic protection and views, and which notes that:

1. while Hastings Point is valued for the visual qualities of its surrounding natural environment it is also an urban area and fulfils the function of providing for human habitation and human use;

2. the intent of this plan:

‘is not necessarily to hide buildings, nor to restore this the settlement visually back to its original state before human habitation, but rather to ensure a balance between viewing, from key public places, the natural environment and buildings together as a whole’.

3. the overall visual identity of Hastings Point:

is to be that of a small coastal settlement set within a natural environment. The key to achieving this is to ensure that buildings are designed with reference to the visual setting or settings in which they appear’

4. the effect of new structures and buildings within a visual setting should (inter alia):

‘not be more visually obtrusive than existing buildings within that visual setting’.

96. These controls provide the basis for the assessing the proposed development’s potential planning impacts, particularly those concerning the character and streetscape of Hastings Point.

97. During the hearing, the Applicant noted that the Code (section 4.1 Peninsula Street and Northern Entry) stated that the caravan park was considered an important site within Hastings Point as it provides a range of accommodation choices and activities for visitors to the area.

98. The applicant also tendered letters during the hearing from tourism industry bodies that attested to the economic contribution made by the caravan park to the Tweed Shire regional economy.

99. At the commencement of the hearing, Mr David Beadel, the owner/Director of the North Starr Holiday Park provided testimony that:

1. the proposed development was required to keep the caravan park competitive within its market in northern NSW;

2. since its installation the water park facility at the caravan park closed at each day at 4pm in winter and 6pm in summer;

3. day visitors to the facility were identified by the use of wrist bands and that there was no established limit to the number of these bands that could be issued on any day;

4. use of the facility was self-monitored by guests.

100. Expert testimony on planning and landscaping matters was provided during the hearing by Mr Jim Glazebrook, Consultant Town Planner, and Mr Catriona Mackenzie, Consulting Arboriculturist, for the Applicant, and Mr Andrew Martin, Consultant Town Planner, for the Respondent.

101. A joint report of the planning and landscaping experts was tendered as evidence during the hearing.

102. The evidence of the planning and landscape experts addressed the following specific aspects of the proposed development’s potential impact on the character and streetscape of Hastings Point:

1. its appearance, including bulk and height;

2. the proposed screening and landscaping treatments;

3. the potential for independent use of the water park by visitors, rather than residents, of the caravan park.

Is the appearance, including bulk and height, of the proposed development acceptable?

103. As outlined at [95], the Code identifies that the key to delivering the scenic protection and views to support the desired future character of Hastings Point is to ensure that ‘buildings are designed with reference to the visual setting or settings in which they appear’, and new structures and buildings within a visual setting should ‘not be more visually obtrusive than existing buildings within that visual setting’.

104. The location of the proposed development within the Subject Site has a height control of 10m under cl4.3 of TLEP 2014, and it complies with that control.

105. As a consequence, the proposed development’s bulk and height cannot of themselves be a reason to refuse consent.

106. The appearance of the proposed development, and its impact on the visual amenity of residents and visitors to the Hastings Point locality, will influenced by the effectiveness of the landscaping proposed by the Applicant. This is addressed below.

Are the proposed screening and landscaping treatments acceptable?

107. Part 4 of the Code provides precinct specific strategies for particular areas of Hastings Point. Section 4.1 provides a strategy for Peninsula Street and the Northern Entry to Hastings Point, in which locality the proposed development is located.

108. Section 4.1.2.1 sets out the principles for delivery of the precinct strategy for Peninsula Street and the Northern Entry. These include:

….

5. Enhance and rejuvenate planted areas along the sides of the Tweed Coast Road

6. Improve the pedestrian experience along Tweed Coast Road through streetscape improvements

7. Replan and renovate large on-site unsightly areas of bitumen to include deep setbacks vegetation and mature trees along the Tweed Coast Road

8. Retain current uses on the caravan park

9. Preclude large buildings whilst maintaining the existing caravan park commercial and tourist uses

10. Screen the conference centre building from view along the Tweed Coast Road by providing deep setbacks of vegetation and mature trees

….

14. Ensure well landscaped front setbacks along the Tweed Coast Road

….

109. The water park facility at the caravan park is located immediately adjacent to the Tweed Coast Road, and as a consequence is visually prominent.

110. The current water slide structure is about 3m high and is reasonably shielded from the view of a motorist on the Tweed Coast Road or a resident viewing the site from a residence opposite.

111. The new water slide facility would be more visually prominent than the current water slide facility, both from the perspective of motorists passing the site (because the structure although partially screened, will not be fully screened, by vegetation (see below at [119(1)]), and residents viewing the structure from their dwellings opposite the Subject Site.

112. The new water park slides are proposed to have an acoustic barrier installed at the level of the water slide entry platform, 8.2m above ground level, which will extend a further 1.8m above the height of that platform. This structure would be visually prominent, both at close quarters and from a distance

113. The Applicant said that given the 10m height control for the proposed development, consent could be sought for a solid structure in the location of the water park facility to a height of 10m.

114. In reply, the Respondent said that such redevelopment of the Subject Site in this area would also require the Applicant to provide a 10m landscape buffer to Tweed Coast Road, as required under the Code’s controls for the Peninsula Street and the Northern Entry precinct.

115. In response to a question from the Applicant, Mr Glazebrook said that in his opinion, the 10m landscape setback proposed within the Code for this part of Tweed Coast Rd would only apply in the case of redevelopment of the site, but it did not seek to limit works in the current caravan park operation.

116. He observed that the current water park facility intrudes into this 10m setback area and the proposed development would maintain a similar intrusion.

117. Mr Glazebrook added that, if the proposed development were not to receive consent under the current appeal, the Applicant would not be required to provide the 10m vegetated setback in the vicinity of the water slide facility as proposed in the precinct strategy for Peninsula Street and the Northern Entry, and that this confirmed his opinion that the 10m landscape setback proposed within the Code would only apply in the case of redevelopment of the Subject Site.

118. Having considered the evidence of the experts, I agree with the Applicant, and its expert Mr Glazebrook, that the 10m buffer should not apply to the current appeal as its intent could only be achieved in the context of the redevelopment of that part of the caravan park currently occupied by the water park facility. Such a proposal would also be the subject to other design considerations contained within TDCP 2008.

119. Ms Mackenzie provided expert testimony on the capacity of the proposed landscape plan to provide screening of the proposed development, during which she said that:

1. it would not be possible for landscaping to completely screen the proposed new water slide facility from view by motorists and residents;

2. the proposed landscaping would provide adequate screening as it would break up the view of the waterslide structure, and would cover a gap in current landscape screening in front of the water slide facility.

120. In response to a series of questions from the Respondent, Ms Mackenzie said that:

1. the proposed relocation of some larger trees (identified as trees T7, T10, and T60 in the landscape plans) was technically feasible and their temporary removal would facilitate construction phase access to the site for the proposed development;

2. the proposed new plantings near the trees identified as trees T42 and T43 in the landscape plans would provide mid-level screening and the growth of these plantings would not be restricted by those two larger trees;

3. some trees located along the more northerly end of the site boundary, along Tweed Coast Road, were located outside of the Subject Site, and on Council owned land. She confirmed that as the trees were located on Council land they could be subject to pruning by Council.

121. Mr Martin was invited by the Respondent to provide his opinion on the capacity of the landscaping proposed by Ms Mackenzie to screen the proposed water slide.

122. In response to a question from the Respondent, Mr Martin said that, in his opinion, the proposed landscaping plan did not provide enough vegetation to screen the water slide structure, and expressed a concern that the trees outside the Subject Site which were limited to 5-6m in height were also at risk of pruning as they were located on Council land, and were not under the control of the Applicant.

123. He said that, as a consequence, the proposed landscaping in his opinion could not be relied up to screen the structure.

124. However, Mr Martin also conceded that he was not an aboriculturalist and that he would defer to Ms Mackenzie’s opinion in respect of the capacity of the larger trees to be transplanted successfully and to continue their growth.

125. Ms Mackenzie said that she was confident that the landscape plan, which showed all proposed plantings, would succeed, including the proposed transplanting of the larger palms on site.

126. While I note the concerns of Mr Martin in relation to the adequacy of the landscape plan, I accept, as did Mr Martin, that the only specialist landscape testimony provided during the hearing was that provided by Ms Mackenzie.

127. I found Ms Mackenzie’s testimony to be detailed and authoritative. I therefore accept her testimony that the proposed landscape plan, including the proposed plantings and relocation of several larger trees, has a high likelihood of success.

128. I conclude, based on the expert testimony of Ms Mackenzie, and as acknowledged by Mr Martin, that the proposed screening and landscaping treatments is acceptable, and would adequately mitigate the visual impact of the proposed development.

129. I also accept that the proposed development, including the landscaping plan, is consistent with the principles for delivery of the precinct strategy for Peninsula Street and the Northern Entry within the Code, noting that many of these would only be applicable in circumstances where redevelopment of the site, including removal of the water park facility, was proposed.

Is the potential for independent use of the water park, by day visitors rather than residents of the caravan park, acceptable?

130. Local residents expressed concern in their submissions that should proposed development receive consent, the Applicant may permit the new water park facilities to be used by day visitors to the site, rather than its use being limited to temporary or longer term residents of the caravan park, and their legitimate guests.

131. The traffic experts, Mr McLaren and Mr Gross, testified that the proposed plan of management for the facility, including the amendments proposed at [91], once implemented, would ensure that so-called independent use of the water park facilities would be unlikely. The Parties confirmed that they both accepted the opinion of the experts on this point.

132. I also accept the opinion of the experts that the implementation of the proposed plan of management, as amended, should provide adequate assurance that use of the water park facilities on the Subject Site would be managed so as to ensure that only residents of the caravan park and their legitimate guests would have the benefit of their use.

Conclusion – planning issues

133. As discussed at [128], I am satisfied that:

1. based on the proposed landscaping plan and the testimony of Ms Mackenzie, the visual impact of the proposed development is acceptable; and

2. as noted at [132], the implementation of the plan of management should ensure that only residents of the caravan park and their legitimate guests would have the benefit of use of the water park facilities.

134. Mr Martin, the Respondent’s planning expert, in response to a question from the Applicant, said that, in his view, as the proposed development was compliant with the height controls of TLEP 2014, the principal planning issues for resolution were the acceptability of the visual impact of the proposed development and the potential for independent use of the water park facilities.

135. Mr Martin said that if the court were satisfied in relation to these two elements, then, from a planning perspective, there was no reason that consent should not be granted to the proposed development.

136. I therefore conclude that the proposed development should be approved, subject to the imposition of conditions of consent to reflect the findings in this judgment.

Should the approval also include a condition requiring the installation of an acoustic wall along the boundary of the Subject Site at ground level?

137. At the commencement of the hearing, local residents Mr Graham Papworth, Mr Geoff Hardcastle and Ms Eloise McGilligan, each submitted that the potential noise impacts from the water park facility were a matter of concern to themselves and other local residents.

138. Mr Papworth and Mr Hardcastle, in particular, gave evidence that the potential noise generated by the water park facility, and its impacts of this on resident amenity and local fauna, was their greatest concern.

139. Mr Papworth said that since the commencement of its operations noise from the water park facility had reduced the amenity of local residents, particularly those residents living opposite the caravan park.

140. Mr Hardcastle said that he was concerned that the noise of the water park facility had had an impact on native fauna using the areas of natural vegetation opposite the water park facility.

141. Section 80A(a) of the EP&A Act provides that:

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in section 79C(1) of relevance to the development the subject of the consent.

142. The public interest is one matter for consideration under s79C(1)(a) of the EP&A Act, and the submissions of residents in this case have established that noise impacts from the water park are a matter of public in this appeal.

143. As previously noted at [60],the parties agreed, based on the evidence of the noise experts, that the level of noise generated by the proposed development would not differ significantly from to that generated by the current operation of the water park facility.

144. The experts also agreed (see [54]) that the noise generated by the water park facility was intrusive and would remain so under the proposed development unless further mitigation measures were introduced.

145. During the hearing the noise experts drew the Court’s attention to the report of ATP Consulting that recommended the introduction of an additional 2.8m high acoustic barrier on the boundary of the Subject Site along the Tweed Coast Road, to reduce the level of noise generated from the water park from intrusive to non-intrusive levels, and so improve the amenity of local residents.

146. The Applicant said that it would not oppose a condition of consent requiring the installation of such an additional acoustic barrier.

147. Notwithstanding the acoustic benefits of the additional barrier, the planning experts said that such a barrier would also reduce visual amenity along that section of the Tweed Coast Road, and which also serves as the northern entry to the village of Hastings Point. They said that, as a consequence of this visual impact, they did not support adoption of the recommendation for the additional acoustic barrier.

142. As noted above at [55(3)] the INP states that, in relation to the implementation of noise mitigation measures:

the reasonableness of such measures relates to the application of judgement taking into account a number of factors including community views, including views on aesthetic impacts and community wishes.

149. Having considered the above points, I have concluded that it is in the public interest to include a condition of consent requiring the installation of a additional acoustic screen along the boundary of the water park fronting the Tweed Coast Road.

150. In reaching this conclusion I found the evidence of the local objectors discussed at [137] and [140] most compelling.

151. Nevertheless, I am also mindful that, reflecting the recommendations of the INP (see [148]), the construction of an acoustic barrier, while mitigating noise impacts on residents and local fauna, has the potential to give rise to adverse visual amenity impacts within the Northern Entry to Hastings Point.

152. Consequently, I propose that the Parties provide submissions to the Court on a condition of consent to require that the finalisation of the design of both acoustic barriers, including their external presentation to Tweed Coast Road, be subject to consultation with local residents, including those who made submissions to this appeal.

Conclusion

153. Based on the above, I am satisfied that:

1. the proposed development is permissible under TLEP 2014, and is compliant with the height controls of that plan;

2. the predicted noise levels from the proposed development will not significantly increase the noise produced by the water park facility compared to current levels, and consent should not be refused on the basis of potential noise impacts;

3. the proposed development is compliant with TDCP 2008 Section A2 Site Access and Parking Code, and the Carparking and Access controls in Part 6 of TDCP 2008;

4. the potential traffic impacts of the proposed development are acceptable, and should not be used as basis for refusal of the application, provided that:

1. as recommended by the traffic experts, the following are included in the conditions of consent for the proposed development:

1. signage is to be installed and maintained to identify that the car spaces fronting the caravan park is on private property and only for the use of visitors to the caravan park, with additional messaging on the signage warning of possible vehicle tow away;

2. designated staff parking within the service station must be signed and line marked accordingly;

3. the visitor parking for the service station must be signed and line marked accordingly, identifying them as short stay (15 minutes), time-restricted bays;

2. the proposed plan of management for operation of the water park facility, including the management of parking arrangements, be amended through incorporation of:

1. the condition proposed at [81(4)],

2. a complaint management procedure, and

3. a procedure for updating or changing the plan, including the advertising of any such changes.

5. the proposed screening and landscaping treatments are acceptable, and would adequately mitigate the visual impact of the proposed development;

6. the implementation of the proposed plan of management, as amended, should provide adequate assurance that use of the water park facilities on the Subject Site would be managed so as to ensure that only residents of the caravan park and their legitimate guests would have the benefit of their use;

7. the matters required to be considered under cl5.5 of TLEP 2014 concerning development in the coastal zone have been addressed, particularly in relation to:

1. the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality;

2. how biodiversity and ecosystems can be conserved, including:

1. native coastal vegetation and existing wildlife corridors, and

2. native fauna and native flora, and their habitats;

8. the proposed development will not give rise to any cumulative impacts directly or in relation to other developments on the coastal catchment, given that it concerns replacement of part of the water park facility at the caravan park.

154. I conclude that the Applicant’s development application (DA15/1064) for the redevelopment of a waterslide playground within the North Star Holiday Resort and Caravan Park, including the removal of two sides and their replacement with two enclosed slides, should be approved on the basis of the following directions.

Directions

155. The Court directs that:

1. the Parties are to prepare final, agreed conditions of consent to reflect with the findings of this judgement at [153(4)(a)];

2. the agreed conditions of consent are to be filed with the Court along with:

1. an amended draft plan of management to reflect the findings of this judgment at [153(4)(b)];

2. submissions in relation to the wording of a condition of consent concerning the finalisation of the design of acoustic barriers to reflect the findings of this judgment at [152].

3. The documents described at [155(1) and 155(2)] are to be filed with the Court by no later than 28 February 2018.

4. Final orders will be made in chambers following filing of these documents.

5. Liberty to restore on 3 days’ notice.

Orders

156. The orders of the Court are:

1. The Applicant is granted leave to rely on amended plans;

2. The appeal is upheld;

3. Development application DA15/1064 for the redevelopment of a waterslide playground within the North Star Holiday Resort and Caravan Park at 1-3 Tweed Coast Road, Hastings Point, including the removal of two slides and their replacement with two enclosed slides, is determined by the grant of consent, subject to the conditions provided at Annexure ‘A’.

4. The exhibits are returned, with the exception of Exhibit 1.  

Addendum

157. In accordance with the Notice of Motion, filed by consent, on 6 March 2018, I make the following order in chambers as an addition to the orders made in the judgment handed down on 2 March 2018 so that Order 5 reads as follows:

(5) The Parties are granted liberty to apply on three days’ notice for the purpose of working out these orders.

158. As a consequence, the final orders made on 2 March 2018 to give effect to the parties’ agreement, as amended on 9 March 2018, are:

The orders of the Court are:

1. The Applicant is granted leave to rely on amended plans;

2. The appeal is upheld;

3. Development application DA15/1064 for the redevelopment of a waterslide playground within the North Star Holiday Resort and Caravan Park at 1-3 Tweed Coast Road, Hastings Point, including the removal of two slides and their replacement with two enclosed slides, is determined by the grant of consent, subject to the conditions provided at Annexure ‘A’.

4. The exhibits are returned, with the exception of Exhibit 1.

5. The Parties are granted liberty to apply on three days’ notice for the purpose of working out these orders.

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (31.1 KB, pdf)

Annexure B (1.13 MB, pdf)

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Amendments

02 March 2018 - Orders and Annexure A and Annexure B added

09 March 2018 - In accordance with the Notice of Motion of 6 March 2018, additional order added at [158] (5).

Decision last updated: 09 March 2018