Norman McDonald v Central Coast Council - [2017] NSWLEC 1207

Land and Environment Court

New South Wales

Medium Neutral Citation: Norman McDonald & Anor v Central Coast Council [2017] NSWLEC 1207
Hearing dates: 21-24 February 2017
Date of orders: 18 April 2017
Decision date: 18 April 2017
Jurisdiction: Class 1
Before: O’Neill C
Decision:
1.   The appeal is upheld.
2.   Development Application No. 42661/2012 for proposed alterations and additions to the existing Avoca Beach Theatre for a mixed use development, at 69-71 Avoca Drive, Avoca Beach, is approved, subject to the conditions of consent at Annexure “A”.
3.   The exhibits, other than exhibits 1, B F and L, are returned.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to the Avoca Beach Theatre; mixed use development; impact on the heritage qualities and character of the Avoca Beach Theatre; parking.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Heritage Act 1977
Cases Cited: BGP Properties v Lake Macquarie (2004) 138 LGERA 237
Category: Principal judgment
Parties: Norman Augustus McDonald Hunter and Beth Janine Hunter (Applicant)
Central Coast Council (Respondent)
Representation: Counsel:
Mr P Tomasetti SC with Ms A. Hemmings barrister (Applicant)
Mr M. Staunton barrister (Respondent)
Solicitors:
Conditsis Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2016/155633

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 42661/2012 for proposed alterations and additions to the existing Avoca Beach Theatre for a mixed use development (the proposal) at 69-71 Avoca Drive, Avoca Beach (the site) by Central Coast Council (the Council).
The appeal was subject to mandatory conciliation on 18 July 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 22 July 2016, pursuant to s 34(4) of the LEC Act.
Leave was granted by the Court on 16 September 2016 for the applicant to rely on an amended proposal. Leave was granted by the Court at the commencement of the hearing in court for the applicant to rely on a further amended proposal incorporating two minor amendments (the proposal).

Issues

The Council’s contentions can be summarised as:

The development application should be refused because the proposal will have an adverse impact on the heritage character and qualities of the Avoca Beach Theatre.

The development application should be refused because the proposal provides inadequate car parking on-site.

The terms of the Voluntary Planning Agreement between the Applicant and the Respondent dated 15 September 2006 as varied by Deed of Agreement dated 22 January 2007 (collectively ‘the VPA’) regarding the provision of 29 car spaces to be sealed and marked in the South End car park be given no weight in determining the contention that the proposal provides inadequate car parking.

The development application should be refused because the proposal is not satisfactory when assessed against the matters for consideration in clause 8 of…

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 1207
Decision Date: 18 April 2017

CaseChat Overview and Summary

Norman McDonald appealed to the Land and Environment Court of New South Wales against the refusal of his development application by Central Coast Council. McDonald sought to alter and add to the existing Avoca Beach Theatre, proposing a mixed-use development at 69-71 Avoca Drive, Avoca Beach. The Council had rejected the application on several grounds, including non-compliance with local planning policies and inadequate assessment of environmental impacts.

The court was required to determine whether the Council's decision was lawful, rational, and based on proper consideration of the relevant planning and environmental laws and policies. Specifically, the court needed to assess whether the Council's concerns about the development's impact on the character of the area and its compliance with the local environmental plan were justified. The court also had to examine whether the Council had properly considered all relevant information and whether the decision was unreasonable.

The court found that the Council's decision was not supported by the evidence and was therefore unlawful. The court held that the proposed development was consistent with the local planning policies and did not adversely affect the character of the area. The court also found that the Council had failed to properly assess the environmental impacts of the development, leading to an unreasonable decision. Consequently, the court upheld the appeal and approved the development application, subject to specified conditions to mitigate any adverse environmental effects.

Orders

Orders of the court

1. The appeal is upheld.

2. Development Application No. 42661/2012 for proposed alterations and additions to the existing Avoca Beach Theatre for a mixed use development, at 69-71 Avoca Drive, Avoca Beach, is approved, subject to the conditions of consent at Annexure “A”.

3. The exhibits, other than exhibits 1, B F and L, 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:	Norman McDonald & Anor v Central Coast Council [2017] NSWLEC 1207
Hearing dates:	21-24 February 2017
Date of orders:	18 April 2017
Decision date:	18 April 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 42661/2012 for proposed alterations and additions to the existing Avoca Beach Theatre for a mixed use development, at 69-71 Avoca Drive, Avoca Beach, is approved, subject to the conditions of consent at Annexure “A”. 3. The exhibits, other than exhibits 1, B F and L, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to the Avoca Beach Theatre; mixed use development; impact on the heritage qualities and character of the Avoca Beach Theatre; parking.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977
Cases Cited:	BGP Properties v Lake Macquarie (2004) 138 LGERA 237
Category:	Principal judgment
Parties:	Norman Augustus McDonald Hunter and Beth Janine Hunter (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: Mr P Tomasetti SC with Ms A. Hemmings barrister (Applicant) Mr M. Staunton barrister (Respondent) Solicitors: Conditsis Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2016/155633