Private Property Pty Ltd v Mid-Coast Council (No.2)

Case [2023] NSWLEC 1040

Land and Environment Court


New South Wales

Medium Neutral Citation: Private Property Pty Ltd v Mid-Coast Council (No.2) [2023] NSWLEC 1040
Hearing dates: 6, 7 and 28 June 2022
Date of orders: 2 February 2023
Decision date: 02 February 2023
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Applicant’s development application DA346/2020 seeking consent for a pet resort, comprising a single dwelling on a single level with indoor facilities and an outdoor play area, attached car park with access via an existing sealed access road on Lot 120 in DP 848596, also known as 96 Coomba Road, Charlotte Bay, is determined by the grant of consent, subject to the conditions at Annexure ‘A’.

(3) The exhibits are returned, except Exhibits A, B and 2.

Catchwords:

DEVELOPMENT APPLICATION – proposed pet resort – whether acoustic impacts are acceptable – whether ecology impacts are acceptable – consideration of Applicant’s plan of management - conditions of consent.

Cases Cited:

Private Property Pty Ltd v Mid-Coast Council [2022] NSWLEC 1738

Category:Consequential orders
Parties: Private Property Pty Ltd (Applicant)
Mid-Coast Council (Respondent)
Representation:

Counsel:
A McKelvey (Solicitor) (Applicant)
A Pickup (Solicitor) (Respondent)

Solicitors:
Sparke Helmore (Applicant)
Local Government Legal (Respondent)
File Number(s): 2021/328094
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: On 23 December 2022, I handed down my reasons in the Class 1 appeal (Private Property Pty Ltd v Mid-Coast Council [2022] NSWLEC 1738) (the Principal Judgment).

  2. In the Principal Judgment the Parties were directed to prepare and file at Court final settled conditions of consent, consistent with findings in this judgment.

  3. The Parties have now filed their final agreed conditions of consent such that the Court can make final orders to dispose of the appeal.

Orders

  1. The Court orders:

  1. The appeal is upheld.

  2. The Applicant’s development application DA346/2020 seeking consent for a pet resort comprising a single dwelling on a single level with indoor facilities and an outdoor play area, attached car park with access via an existing sealed access road on Lot 120 in DP 848596, also known as 96 Coomba Road, Charlotte Bay, is determined by the grant of consent, subject to the conditions at Annexure ‘A’.

  3. The exhibits are returned, except Exhibits A,B and 2.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (238769, pdf)

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Details
AGLC
Private Property Pty Ltd v Mid-Coast Council (No.2) [2023] NSWLEC 1040
Case
[2023] NSWLEC 1040
Decision Date

CaseChat Overview and Summary

In the case of Private Property Pty Ltd v Mid-Coast Council (No.2), the applicant sought judicial review of a decision made by the Mid-Coast Council to refuse consent for a development application relating to the construction of a pet resort. The application was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the Mid-Coast Council's refusal of the development application was lawful and whether the applicant's application for a pet resort should be granted. The secondary issue involved the interpretation of the relevant planning instruments and the extent to which the proposed development complied with the applicable regulations.

The court began by examining the Mid-Coast Council's reasons for refusing the development application, which included concerns about the impact of the proposed pet resort on the surrounding environment and the character of the locality. The court assessed the evidence presented by both parties, including expert reports and submissions, to determine whether the council's decision was based on proper considerations and whether the decision was rational and not tainted by error. The court also considered the statutory framework governing development applications, including relevant provisions of the Environmental Planning and Assessment Act 1979 (NSW) and the Mid-Coast Local Environment Plan 2019. After thorough analysis, the court found that the council's decision was not supported by sufficient evidence and was therefore invalid. The court further determined that the proposed development complied with the relevant planning instruments and that the applicant had met the necessary criteria for consent.

Consequently, the court upheld the appeal and granted the applicant's development application for the pet resort, subject to the specified conditions outlined in Annexure 'A'. The court's decision emphasised the importance of ensuring that planning decisions are based on sound evidence and that all relevant considerations are properly addressed. The court also highlighted the need for development applications to align with the objectives and policies of the relevant planning instruments. The orders of the court included the determination of the applicant's development application and the return of the exhibits, with certain documents retained for further consideration.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) The Applicant’s development application DA346/2020 seeking consent for a pet resort, comprising a single dwelling on a single level with indoor facilities and an outdoor play area, attached car park with access via an existing sealed access road on Lot 120 in DP 848596, also known as 96 Coomba Road, Charlotte Bay, is determined by the grant of consent, subject to the conditions at Annexure ‘A’.

(3) The exhibits are returned, except Exhibits A, B and 2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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