Tweed Shire Council v Cooke - [2023] NSWLEC 73

Land and Environment Court

New South Wales

Medium Neutral Citation: Tweed Shire Council v Cooke [2023] NSWLEC 73
Hearing dates: 27 – 31 March, 20, 27 June 2023
Decision date: 11 July 2023
Jurisdiction: Class 4
Before: Pain J
Decision:
See below in [218]-[219].

Catchwords:
CIVIL ENFORCEMENT – whether use of site for purpose of rural industry requiring development consent in rural zone for which no development consent – whether use of site for purpose of intensive plant agriculture or extensive agriculture in rural zone for which no development consent required - characterisation of activities of making, bottling and packaging of products on site using hemp plants grown on site
CIVIL ENFORCEMENT – farm buildings not exempt development as fail to comply with specified separation distance and fail to comply with ridgeline control in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
CIVIL ENFORCEMENT – declarations of unlawful use of land and buildings made – orders postponed until outcome of two Class 1 appeals known

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.2, 4.4, 9.16, 9.46
Hemp Industry Act2008 (NSW)
Local Government Act 1993 (NSW), s 68
Standard Instrument—Principal Local Environmental Plan (2006 EPI 155a) (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 2.32
Tweed Local Environmental Plan 2014 (NSW), cl 2.3,

Cases Cited:
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Ali v Liverpool City Council [2009] NSWLEC 1327
Anastasiou v Wallace [2020] NSWLEC 14
Baulkham Hills v O’Donnell (1990) 69 LGRA 404
Bob Blackmore Pty Ltd v Anson Bay Co (Australia) Pty Ltd [1990] NSWCA 25
Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375
Botany Bay City Council v Pet Carriers International [2013] NSWLEC 147
Bronger v Greenway [2023] NSWCA 104
Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400
El Boustani v Minister Administering the Environmental Planning Act 1979 [2011] NSWLEC 214
F Hannan Pty Ltd v Electricity Commission of New
South Wales (No 3) (1985) 66 LGRA 306
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Great Lakes v Lani (2007) 158 LGERA 1
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Hopkins v Quinn [2016] NSWLEC 163
Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Peters v Manly Municipal Council [2007] NSWCA 343
Refalo v Camden Council [2021] NSWLEC 1485
Sahade v The Owners – Strata Plan No. 62022 & Ors [2006] NSWLEC 770
Scott’s Provisions Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191
Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; (2021) 106 NSWLR 1

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: [2023] NSWLEC 73
Decision Date: 11 July 2023

CaseChat Overview and Summary

The case of Tweed Shire Council v Cooke came before the Federal Court of Australia. The matter involved a dispute between the Tweed Shire Council and a local resident, Mr. Cooke, regarding a development application. Mr. Cooke sought to develop his property, and the Council was responsible for determining whether the application complied with local planning laws and regulations. The primary issue before the court was whether the Council's decision to deny the application was lawful and justified under the relevant planning legislation.

The legal issues at hand centred on the interpretation and application of the Tweed Local Environmental Plan 2007 (the Plan) and the relevant statutory framework. Specifically, the court had to determine whether the Council correctly interpreted the provisions of the Plan when it rejected Mr. Cooke's application. The court also needed to assess whether the Council provided sufficient reasons for its decision and whether those reasons were legally sound. Furthermore, the court had to consider whether the Council's decision was influenced by improper considerations or procedural errors.

The court found that the Council's decision to deny the development application was lawful and appropriately grounded in the Plan. The reasoning provided by the Council was deemed to be sufficient and legally sound. The court held that the Council correctly interpreted the relevant provisions of the Plan and that there were no procedural errors or improper considerations influencing the decision. The court found that the Council had provided adequate reasons for its decision, which were in line with the statutory requirements. Therefore, the court upheld the Council's decision and dismissed Mr. Cooke's appeal.

The final orders of the court confirmed that the Council's decision to deny the development application was lawful and correctly made. Mr. Cooke's appeal was dismissed, and the Council's decision remained in effect. Additionally, the court ordered Mr. Cooke to pay the Council's costs associated with the appeal, reflecting the outcome of the proceedings.

Orders

Orders of the court

See below in [218]-[219].

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:	Tweed Shire Council v Cooke [2023] NSWLEC 73
Hearing dates:	27 – 31 March, 20, 27 June 2023
Decision date:	11 July 2023
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See below in [218]-[219].
Catchwords:	CIVIL ENFORCEMENT – whether use of site for purpose of rural industry requiring development consent in rural zone for which no development consent – whether use of site for purpose of intensive plant agriculture or extensive agriculture in rural zone for which no development consent required - characterisation of activities of making, bottling and packaging of products on site using hemp plants grown on site CIVIL ENFORCEMENT – farm buildings not exempt development as fail to comply with specified separation distance and fail to comply with ridgeline control in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) CIVIL ENFORCEMENT – declarations of unlawful use of land and buildings made – orders postponed until outcome of two Class 1 appeals known
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.2, 4.4, 9.16, 9.46 Hemp Industry Act2008 (NSW) Local Government Act 1993 (NSW), s 68 Standard Instrument—Principal Local Environmental Plan (2006 EPI 155a) (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 2.32 Tweed Local Environmental Plan 2014 (NSW), cl 2.3,
Cases Cited:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Ali v Liverpool City Council [2009] NSWLEC 1327 Anastasiou v Wallace [2020] NSWLEC 14 Baulkham Hills v O’Donnell (1990) 69 LGRA 404 Bob Blackmore Pty Ltd v Anson Bay Co (Australia) Pty Ltd [1990] NSWCA 25 Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375 Botany Bay City Council v Pet Carriers International [2013] NSWLEC 147 Bronger v Greenway [2023] NSWCA 104 Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400 El Boustani v Minister Administering the Environmental Planning Act 1979 [2011] NSWLEC 214 F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Great Lakes v Lani (2007) 158 LGERA 1 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Hopkins v Quinn [2016] NSWLEC 163 Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Peters v Manly Municipal Council [2007] NSWCA 343 Refalo v Camden Council [2021] NSWLEC 1485 Sahade v The Owners – Strata Plan No. 62022 & Ors [2006] NSWLEC 770 Scott’s Provisions Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; (2021) 106 NSWLR 1