Milne v Minister for Planning (No 2) - [2007] NSWLEC 66

Land and Environment Court

of New South Wales

CITATION: Milne v Minister for Planning & Anor [No. 2] [2007] NSWLEC 66

PARTIES:
APPLICANT
Katie Milne
FIRST RESPONDENT
Minister for Planning
SECOND RESPONDENT
Rivercolt Pty Ltd

FILE NUMBER(S): 10408 of 2006

CORAM: Jagot J

KEY ISSUES: Appeal :- development application - State significant development - extensions to marina - social and economic impacts - visual impacts - impacts on seagrasses - development consent refused

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Roads Act 1993
State Environmental Planning Policy No 71 – Coastal Protection
Tweed Local Environmental Plan 2000

CASES CITED: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237;
Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251;
D'Oro Distributors Pty Ltd v The Superintendent of Licensed Premises and Kiley (1968) SASR 220;
Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, unreported, 17 February 1997;
Jarasius v Forestry Commission of New South Wales and Others [No 1] (1988) 71 LGRA 79;
Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675;
New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303;
Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55;
Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10

DATES OF HEARING: 30/1/2007, 31/1/2007, 1/2/2007, 2/2/2007, 5/2/2007, 6/2/2007, 7/2/2007, 8/2/2007

DATE OF JUDGMENT:
26 February 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/A
FIRST RESPONDENT
Mr P Clay
SOLICITORS
Legal Services Branch - Department of Planning
SECOND RESPONDENT
Mr I Hemmings
SOLICITORS
Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

26 February 2007

10408 of 2006

KATIE MILNE
Applicant

MINISTER FOR PLANNING
First Respondent

RIVERCOLT PTY LTD
Second Respondent
JUDGMENT

Jagot J:
A. The appeal

1 On 6 April 2006, the Minister for Planning determined development application (DA 2273-6-2003), proposing an extension of the Chinderah marina, by the grant of development consent, subject to conditions. The Chinderah marina is a 29 berth marina approved by the Tweed Shire Council on 21 June 2000. That consent became operative on 30 June 2005. Construction of the 29 berth marina has not commenced. The extension approved by the Minister involved an additional 86 marina berths, a 52 space car park, a fuel storage tank and pipeline and a public jetty with a fuel and sewage pump-out facility.

2 The marina extension is designated development under s 77A of the Environmental Planning and Assessment Act 1979 (the EPA Act). As designated development, the Minister’s consent was subject to s 98 of the EPA Act, enabling any objector dissatisfied with the determination to appeal to the Court. Ms Milne, an objector, appealed to the Court. Rivercolt Pty Ltd is the proponent of the marina.

3 The marina is to be located in the Tweed River below mean high water mark adjacent to Chinderah Bay Drive. The car park…

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: [2007] NSWLEC 66
Decision Date: 26 February 2007

CaseChat Overview and Summary

The case of Milne v Minister for Planning (No 2) involved an appeal against the Minister for Planning's decision to grant development consent for the expansion of the Chinderah marina in New South Wales. The applicant, Katie Milne, raised numerous grounds for refusal, including adverse social and economic impacts on the local community, unacceptable visual impacts on a significant vista, and potential impacts on seagrasses and riverbank erosion. The court found that the proposed expansion would have substantial adverse social and economic effects on Chinderah, significantly disproportionate to the potential regional benefits, and that the visual impacts on a highly significant view across the water to Mount Warning warranted refusal of the application. Additionally, the court found that the proposal would have severe impacts on the critical Lillies Island seagrass beds and increase riverbank erosion in a vulnerable location. The court concluded that these findings were sufficient to warrant refusal of the application, and the appeal was upheld, refusing the development consent for the marina expansion.

Orders