Najask Pty Ltd v Palerang Council

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Najask Pty Ltd v Palerang Council [2009] NSWCA 39

FILE NUMBER(S):
40233/08

HEARING DATE(S):
25 February 2009

JUDGMENT DATE:
10 March 2009

PARTIES:
Najask Pty Limited
Palerang Council

JUDGMENT OF:
Spigelman CJ Ipp JA Tobias JA   

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 10362/07

LOWER COURT JUDICIAL OFFICER:
Lloyd J

LOWER COURT DATE OF DECISION:
6 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Najask Pty Limited v Palerang council [2008] NSWLEC 160

COUNSEL:
A: T Robertson SC / J Lazarus
R: J Robson SC / C Ireland

SOLICITORS:
A: Pikes Lawyers, Sydney
R: Minter Ellison Lawyers, Canberra

CATCHWORDS:
ENVIRONMENT AND PLANNING – environmental planning – planning schemes and instruments – local environmental plans – state environmental planning policies – whether a prohibition on development for the purpose of caravan parks in a local environmental plan was inconsistent with the state environmental planning policy – definition of “caravan park” – whether the terms “moveable dwelling” and “manufactured home” imported a degree of permanency of habitation or occupancy – whether the permissibility of development with consent of caravan parks for the purpose of “tourist facilities” allowed for the construction of manufactured homes for permanent or long-term residence 

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1993

CASES CITED:
Najask Pty Ltd v Palerang Council [2008] NSWLEC 160
Wygiren Pty Ltd v Kiama Municipal Council [2008] NSWLEC 56

TEXTS CITED:

DECISION:
(a)       Grant leave to appeal on condition that the applicant file and serve its Notice of Appeal within 7 days of the date of these orders;
(b)       Appeal dismissed;
(c)         The applicant to pay the respondent’s costs of the Summons for leave to appeal and of the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40233/08

SPIGELMAN CJ
IPP JA
TOBIAS JA

Tuesday 10 March 2009

NAJASK PTY LTD v PALERANG COUNCIL

Judgment

1. SPIGELMAN CJ: I agree with Tobias JA.

2. IPP JA: I agree with Tobias JA.

3. TOBIAS JA:  The applicant is the owner of an existing caravan park known as “Capital Country Holiday Village” (the park).  On 15 February 2005 it applied to further extend the park onto some adjoining land (the subject land) by the construction thereon of 159 “manufactured homes” intended for occupation on a permanent basis (the development).  The respondent refused the application and the applicant’s appeal to a Commissioner of the Land and Environment Court was dismissed upon the ground that the development was prohibited.

4. The applicant appealed from the decision of the Commissioner to a judge of the Land and Environment Court (Lloyd J) pursuant to s 56A(1) of the Land and Environment Court Act 1979 (the Court Act).  Such an appeal is confined to a question of law.  One of the questions of law in respect of which the applicant sought the primary judge’s determination was whether the Commissioner had erred in…