Warnes v Muswellbrook Shire Council - [2009] NSWLEC 1284

Land and Environment Court

of New South Wales

CITATION: Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
G Warnes
RESPONDENT
Muswellbrook Shire Council

FILE NUMBER(S): 11287 of 2008

CORAM: Moore SC

KEY ISSUES: CONSTRUCTION AND INTERPRETATION - DEVELOPMENT APPLICATION :-
Characterisation of development
Consistency with zone objectives

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997
Muswellbrook Local Environmental Plan 1985
Muswellbrook Local Environmental Plan 2009

CASES CITED: Moore v Corowa Council [2009] NSWLEC 59
Jambrecina v Blacktown City Council [2009] NSWCA 228

DATES OF HEARING: 23, 24 and 25 June and 23 July 2009

DATE OF JUDGMENT:
26 August 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Clay, barrister
INSTRUCTED BY
Thompson Norrie
RESPONDENT
Mr A McKelvey, solicitor
Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

26 August 2009

08/11287 G Warnes v Muswellbrook Shire Council
JUDGMENT

Introduction

1 SENIOR COMMISSIONER: Muswellbrook, a medium-sized town in the Hunter Valley, has a number of existing or proposed coal mines in its general vicinity. These mines, particularly in their commissioning stages (but also as they expand), require significant construction workforces. These workers coming to the region for such purposes require stable but nonetheless temporary accommodation. The applicant seeks approval to construct a facility on the south-western outskirts of Muswellbrook to meet this demand for construction workers’ accommodation.

2 The facility is opposed by Muswellbrook Shire Council (the council) saying that it is not permissible on the proposed site. If it is held to be permissible, the council says that the proposed facility would be a significant overdevelopment of the site. The proposed facility is also opposed, on a variety of grounds, by a number of local objectors. These objectors were either residents of the vicinity or represented St James Primary School, a Catholic systemic school near the site.

3 The proposed facility would comprise more than 400 accommodation units (in one or two storey blocks); a central mess hall; separate laundry blocks and a manager’s residence. Sufficient parking would be provided on the general assumption that each accommodated worker would have their own vehicle. The proposed facility is described in more detail below.

The site

4 The parcel of land upon the development is proposed to be located (the site) is highly irregular in shape and has no buildings erected on it. The site is some 60 ha in area. The site has a 600 m road frontage to Skelletar Stock Route and the centre of the frontage of the proposed development is at approximately the centre of the site’s frontage to Skelletar Stock Route – leaving undeveloped areas approximately 150 m wide between the proposed development and the developments immediately beyond either extremity of the proposed to be developed portion of the site along its Skelletar Stock Route frontage.

5 The site is located in the Environment Protection…

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: [2009] NSWLEC 1284
Decision Date: 26 August 2009

CaseChat Overview and Summary

The applicant sought approval for the construction of a facility to house construction workers on the outskirts of Muswellbrook. The facility was opposed by the Muswellbrook Shire Council and a number of local objectors. The primary legal issue in this case was whether the proposed facility was permissible within the L2 zone and whether it complied with the zone objectives. The court found that the proposed facility did not fit within the definition of "relocatable home or hostel site" and did not satisfy the first limb of the definition. The court also found that the proposed facility did not require a location close to a town, and if it did, it did not require a location close to the town of Muswellbrook. Consequently, the proposed development did not satisfy the objectives for the L2 zone, and development consent was refused.

Orders