Pearl Investment (Aust) Pty Ltd v Armidale Regional Council (No.2)

[2022] NSWLEC 1725

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pearl Investment (Aust) Pty Ltd v Armidale Regional Council (No.2) [2022] NSWLEC 1725

Hearing dates:

7, 8, 11 and 22 July 2022

Date of orders:

22 December 2022

Decision date:

22 December 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court Orders:

(1)   the appeal is upheld.

(2)   the Applicant’s development application DA-109-2021 seeking consent for the construction of a new service station including a single storey convenience store and takeaway food/drink premises, a cool room, storeroom, office and amenities at Lot 3 DP 1129942, also known as 4 Link Road, Armidale is determined by the grant of consent, subject to the conditions at Annexure ‘A.

(3)   the exhibits are returned, except Exhibits A and 1.

Catchwords:

DEVELOPMENT APPLICATION – proposed service station– whether potential noise impacts are acceptable – whether potential impacts concerning character, visual and streetscape are acceptable – consideration of conditions of consent – directions concerning facilitation of site access – consent in the public interest.

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 4.15

Cases Cited:

Pearl Investment (Aust) Pty Ltd v Armidale Regional Council [2022] NSWLEC 1584

Category:

Consequential orders

Parties:

Pearl Investments (Aust) Pty Ltd (Applicant)
Armidale Regional Council (Respondent)

Representation:

Counsel:
H Irish (Applicant)
K Mortimer (Solicitor)(Respondent)

Solicitors:
MBM Legal and Conveyancing (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/340085

Publication restriction:

No

Judgment

1. COMMISSIONER: On 25 October 2022, I handed down my reasons in the Class 1 appeal (Pearl Investment (Aust) Pty Ltd v Armidale Regional Council [2022] NSWLEC 1584) (the Principal Judgment).

2. In the Principal Judgment the Parties were directed to:

1. confirm whether any further matters for consideration under the provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979 arise as a consequence of the Applicant’s proposed use of Lots 23 and 24 in DP 829599, noting that neither Transport for NSW nor the Respondent Council had raised an objection to the proposed use, other than in relation to owner’s consent;

2. confirm their agreed mechanism and timeline for resolution of matters concerning the provision of access by the Applicant across Council owned lots; and

3. prepare, and the Respondent is to file with the Court, final agreed conditions of consent consistent with the findings of the Court in this appeal.

3. The Parties have now provided their responses to the above directions, including the filing of final agreed conditions of consent consistent with the findings in the Principal Judgment, such that the Court can make final orders to dispose of the appeal.

Orders

4. The Court orders:

1. the appeal is upheld.

2. the Applicant’s development application DA-109-2021 seeking consent for the construction of a new service station including a single storey convenience store and takeaway food/drink premises, a cool room, storeroom, office and amenities at Lot 3 DP 1129942, also known as 4 Link Road, Armidale is determined by the grant of consent, subject to the conditions at Annexure ‘A’.

3. the exhibits are returned, except Exhibits A and 1.

M Chilcott

Commissioner of the Court

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Annexure A

Decision last updated: 22 December 2022