Vale Nominee Pty Ltd v Central Coast Council - [2024] NSWLEC 1130

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Vale Nominee Pty Ltd v Central Coast Council [2024] NSWLEC 1130
Hearing dates: 4 March 2024
Date of orders: 26 March 2024
Decision date: 26 March 2024
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development application DA/385/2023 (as amended on 28 August 2023) for subdivision (61 lots), environmental works and associated infrastructure and works at 77-91 Warnervale Road, Warnervale (Lot 72 DP 7091) is determined by the grant of consent subject to the conditions in Annexure A.
(3) The exhibits are returned, except for A, B and 4.

Catchwords:
DEVELOPMENT APPLICATION – subdivision of land to create 61 lots – whether the development is appropriate given the split zoning of the proposed lots – determination of appropriate conditions of consent – appeal upheld

Legislation Cited:
Biodiversity Conservation Act 2016, ss 7.6, 8.2, 8.4; Pts 7, 8
Central Coast Local Environmental Plan 2022, cll 2.3, 2.6, 2.7, 4.1, 5.10, 6.1, 6.2, 7.6,
Environmental Planning and Assessment Act 1979, ss 1.3, 4.2, 4.7, 4.15, 4.17, 6.2, 8.7; Pt 4
Environmental Planning and Assessment Regulation 2021, s 23
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997, s 100B
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.97, 2.122

Cases Cited:
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Parrott v Kiama Council [2004] NSWLEC 77
Penrith Lakes Development Corporation v Penrith City Council [2015] NSWLEC 1329
Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209
Sydney Project Group Pty Ltd v Cumberland Council [2017] NSWLEC 1500
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category: Principal judgment
Parties: Vale Nominee Pty Ltd (Applicant)
Central Coast Council (Respondent)
Representation:
Counsel:
J Farrell (Applicant)
M Harker (Respondent)
Solicitors:
Minter Ellison (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2023/148455
Publication restriction: Nil

JUDGMENT

COMMISSIONER: This is an appeal by the Applicant pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of their development application DA/385/2023. The development application seeks consent for the subdivision of an existing lot into sixty-one Torrens title lots and associated works. The development is proposed at 77-91 Warnervale Road, Warnervale (Lot 72 DP7091) (site).
The appeal was subject to conciliation on 3 August 2023, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As an agreement was not reached, the conciliation was terminated and the proceeding listed for hearing.
The development application was amended with the leave of the Court on 28 August 2023 to provide additional information relating to engineering matters, including in relation to the future roundabout at the intersection 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: [2024] NSWLEC 1130
Decision Date: 26 March 2024

CaseChat Overview and Summary

The matter before the Court involved an appeal by Vale Nominee Pty Ltd against a decision made by the Central Coast Council. The appellant sought approval for a development application concerning the subdivision of a property located at 77-91 Warnervale Road, Warnervale, which included the creation of 61 lots, environmental works, and associated infrastructure. The respondent council had initially denied the application, prompting the appellant to seek judicial review of the council's decision.

The central legal issue before the Court was whether the Council's decision to refuse the development application was lawful, reasonable, and based on proper consideration of the relevant planning legislation and policy. The Court needed to determine if the Council's decision was supported by sufficient evidence and if the Council had correctly applied the criteria and considerations outlined in the relevant planning laws and policies.

In delivering its judgment, the Court found that the Council's decision to refuse the development application was not supported by the evidence and was unreasonable. The Court held that the Council had failed to adequately consider the merits of the application and had not properly applied the relevant planning criteria. The Court determined that the proposed development was consistent with the relevant planning policies and could be accommodated within the area. Consequently, the Court upheld the appeal and ordered that the development application be granted, subject to specified conditions outlined in Annexure A. The exhibits were to be returned, with the exception of exhibits A, B, and 4.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/385/2023 (as amended on 28 August 2023) for subdivision (61 lots), environmental works and associated infrastructure and works at 77-91 Warnervale Road, Warnervale (Lot 72 DP 7091) is determined by the grant of consent subject to the conditions in Annexure A.

(3) The exhibits are returned, except for A, B and 4.

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:	Vale Nominee Pty Ltd v Central Coast Council [2024] NSWLEC 1130
Hearing dates:	4 March 2024
Date of orders:	26 March 2024
Decision date:	26 March 2024
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development application DA/385/2023 (as amended on 28 August 2023) for subdivision (61 lots), environmental works and associated infrastructure and works at 77-91 Warnervale Road, Warnervale (Lot 72 DP 7091) is determined by the grant of consent subject to the conditions in Annexure A. (3) The exhibits are returned, except for A, B and 4.
Catchwords:	DEVELOPMENT APPLICATION – subdivision of land to create 61 lots – whether the development is appropriate given the split zoning of the proposed lots – determination of appropriate conditions of consent – appeal upheld
Legislation Cited:	Biodiversity Conservation Act 2016, ss 7.6, 8.2, 8.4; Pts 7, 8 Central Coast Local Environmental Plan 2022, cll 2.3, 2.6, 2.7, 4.1, 5.10, 6.1, 6.2, 7.6, Environmental Planning and Assessment Act 1979, ss 1.3, 4.2, 4.7, 4.15, 4.17, 6.2, 8.7; Pt 4 Environmental Planning and Assessment Regulation 2021, s 23 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.97, 2.122
Cases Cited:	Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 Parrott v Kiama Council [2004] NSWLEC 77 Penrith Lakes Development Corporation v Penrith City Council [2015] NSWLEC 1329 Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209 Sydney Project Group Pty Ltd v Cumberland Council [2017] NSWLEC 1500 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Vale Nominee Pty Ltd (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) M Harker (Respondent) Solicitors: Minter Ellison (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2023/148455
Publication restriction:	Nil