Lindstro Pty Ltd v Tweed Shire Council - [2017] NSWLEC 1150

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Lindstro Pty Ltd v Tweed Shire Council [2017] NSWLEC 1150
Hearing dates: 14,15 and 20 June, 30 August and written submissions 16 September 2016
Date of orders: 06 April 2017
Decision date: 24 March 2017
Jurisdiction: Class 1
Before: Dixon C
Decision:
(1) The Appeal is upheld
(2) Consent is granted to the amended development application DA 15/0742 for the conversion of an existing boathouse to a combined boathouse and dwelling at Lot 602 in DP 1098619 known as Lot 602 Salt, NSW 2487 in accordance with the conditions of consent in Annexure A.
(3) The Exhibits are returned.

Catchwords: APPEAL – Development application for the conversion of a boathouse to provide for a dwelling – characterisation of the development - owners’ consent to use of Council land for access - permissibility – amenity impacts
Legislation Cited: Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Conveyancing Act 1919
Interpretation Act 1987
Land and Environment Court Act 1979
Local Government Act 1993
National Parks and Wildlife Act 1974
Threatened Species Conservation Act 1995
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Cases Cited: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
City of Canterbury v Saad [2013] NSWCA 251
North Sydney Council v Ligon 203 Pty Ltd (1996) 185 CLR 470
Sydney City Council v Houlakis & Anor (1996) 92 LGERA 401
Sydney City Council v Ipoh (2006) 149 LGRA 329
Auburn Council v Constani & Anor [2000] NSWLEC 194
Category: Principal judgment
Parties: Lindstro Pty Ltd (Applicant)
Tweed Shire Council (Respondent)
Representation:
Counsel:
C Ireland (Applicant)
S Nash (Respondent)
Solicitors:
D O'Donnell, Addisons (Applicant)
D Gray, Sparke Helmore (Respondent)

File Number(s): 150091 of 2016
Publication restriction: No

Judgment

This is a development appeal following the refusal by Tweed Shire Council (the Council) of the Development Application No 15/0742 (the DA) for the conversion of an existing boathouse to a combined boathouse and dwelling on land located at Lot 602 in DP 1098619. The address is Lot 602, SALT NSW 2487 (the Site).
Although privately owned, the Site is within the SALT resort precinct and subject to the SALT Masterplan. It has frontage to Cudgen Creek and adjoins a public reserve owned by the Council (Lot 221 DP 1069887 and Lot 601 DP 1098619). There is a public right of access (for both vehicle and pedestrian) across Lot 221. There is a public right of footway burdening the Site allowing the public to enter onto the Site and use the boat ramp that extends from Lot 602 into Cudgen Creek.
The Council owned land surrounding the Site namely, Lot 221 (Lot 221) and Lot 601 (Lot 601) is classified as “community land” and by operation of s 31 (2A) of the Local Government Act 1993, pending the adoption of a Plan of Management for the community land, the nature and use of the community land must not be changed.…

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: [2017] NSWLEC 1150
Decision Date: 24 March 2017

CaseChat Overview and Summary

In the case of Lindstro Pty Ltd v Tweed Shire Council, the applicant sought to convert an existing boathouse into a combined boathouse and dwelling at a specified location. The Tweed Shire Council denied the development application, leading to an appeal by Lindstro Pty Ltd to the NSW Land and Environment Court. The dispute centred on whether the proposed development was consistent with the Tweed Shire Local Environmental Plan 2012, specifically considering the location of the boathouse and its proximity to other structures and water bodies.

The primary legal issue was whether the proposed development complied with the provisions of the Tweed Shire Local Environmental Plan 2012, particularly the setback requirements and the zoning of the land. The court needed to determine if the conversion of the boathouse to a dwelling was permissible under the plan, given the specific conditions and regulations governing such developments.

The court found that the Tweed Shire Council had not adequately justified its refusal of the development application. The evidence showed that the proposed development would not result in significant adverse impacts on the environment or neighbouring properties, and it complied with the relevant planning instruments. The court upheld the appeal, granting consent to the amended development application. It was determined that the conversion of the boathouse to a combined boathouse and dwelling was permissible under the conditions outlined in Annexure A. The exhibits were ordered to be returned to the parties.

Orders

Orders of the court

(1) The Appeal is upheld

(2) Consent is granted to the amended development application DA 15/0742 for the conversion of an existing boathouse to a combined boathouse and dwelling at Lot 602 in DP 1098619 known as Lot 602 Salt, NSW 2487 in accordance with the conditions of consent in Annexure A.

(3) The Exhibits are returned.

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:	Lindstro Pty Ltd v Tweed Shire Council [2017] NSWLEC 1150
Hearing dates:	14,15 and 20 June, 30 August and written submissions 16 September 2016
Date of orders:	06 April 2017
Decision date:	24 March 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	(1) The Appeal is upheld (2) Consent is granted to the amended development application DA 15/0742 for the conversion of an existing boathouse to a combined boathouse and dwelling at Lot 602 in DP 1098619 known as Lot 602 Salt, NSW 2487 in accordance with the conditions of consent in Annexure A. (3) The Exhibits are returned.
Catchwords:	APPEAL – Development application for the conversion of a boathouse to provide for a dwelling – characterisation of the development - owners’ consent to use of Council land for access - permissibility – amenity impacts
Legislation Cited:	Environment Protection and Biodiversity Conservation Act 1999 (Cth) Conveyancing Act 1919 Interpretation Act 1987 Land and Environment Court Act 1979 Local Government Act 1993 National Parks and Wildlife Act 1974 Threatened Species Conservation Act 1995 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
Cases Cited:	Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 City of Canterbury v Saad [2013] NSWCA 251 North Sydney Council v Ligon 203 Pty Ltd (1996) 185 CLR 470 Sydney City Council v Houlakis & Anor (1996) 92 LGERA 401 Sydney City Council v Ipoh (2006) 149 LGRA 329 Auburn Council v Constani & Anor [2000] NSWLEC 194
Category:	Principal judgment
Parties:	Lindstro Pty Ltd (Applicant) Tweed Shire Council (Respondent)
Representation:	Counsel: C Ireland (Applicant) S Nash (Respondent) Solicitors: D O'Donnell, Addisons (Applicant) D Gray, Sparke Helmore (Respondent)
File Number(s):	150091 of 2016
Publication restriction:	No