Covercopy Pty Limited v Cessnock City Council [2011] NSWLEC 1136

Covercopy Pty Limited v Cessnock City Council [2011] NSWLEC 1136

The modification should be refused because the evidence established that dust and intrusive noise impacts from the existing concrete batching plant could not be adequately mitigated by the proposed conditions or s88E instrument, there was no evidence that the plant's operation was unlawful, DCP2006 required significant weight to be given to the need for separation between incompatible uses, and the existing condition preventing release of the lots until the plant relocates or permanently ceases to operate remained appropriate.

Jurisdiction
Australia
Judgment Date
27 May 2011
Procedural Posture
Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S96(2) to Modify Development Consent 8/2003/1737 / Principal Judgment After Hearing
Outcome
Appeal dismissed; application to modify Development Consent 8/2003/1737 refused.
Legal Topics
['modification of Development Consent' 'residential Subdivision' 'land Use Conflict' 'noise Impacts' 'dust Impacts' 'buffer Areas' 'existing Use Rights' 'development Control Plans']
['environmental and Planning Law' 'land and Environment Court Proceedings'] ['modification of Development Consent' 'residential Subdivision' 'land Use Conflict' 'noise Impacts' 'dust Impacts' 'buffer Areas' 'existing Use Rights' 'development Control Plans']

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Procedural Posture

Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S96(2) to Modify Development Consent 8/2003/1737 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the site is suitable for subdivision for residential purposes' 'Whether it is reasonable to restrict use of the site for residential purposes in accordance with its zoning due to the continued operation of the concrete batching plant' 'Whether the proposal is consistent with the aims and objects of the Environmental Planning and Assessment Act 1979 concerning orderly and economic development of land' 'Whether the impacts of the concrete batching plant are such that the amenity of residents of the proposed lots would be adversely affected' "Whether the development is consistent with the council's planning controls"]

Ratio Decidendi

The modification should be refused because the evidence established that dust and intrusive noise impacts from the existing concrete batching plant could not be adequately mitigated by the proposed conditions or s88E instrument, there was no evidence that the plant's operation was unlawful, DCP2006 required significant weight to be given to the need for separation between incompatible uses, and the existing condition preventing release of the lots until the plant relocates or permanently ceases to operate remained appropriate.

Court Disposition

Appeal dismissed; application to modify Development Consent 8/2003/1737 refused.

Orders

  • ['The appeal is dismissed.' 'The application to modify Development Consent 8/2003/1737 is refused;' 'The exhibits, other than exhibit F and 6 are returned.']