Kirkness v Gosford City Council [2012] NSWLEC 1060

Kirkness v Gosford City Council [2012] NSWLEC 1060

The Court dismissed the appeal because the proposed development did not comply with the required buffer zone for Whale Rock, failed to respect the setting of the Aboriginal heritage site, and would block visibility (sight lines) between Whale Rock and other significant sites, contrary to the aims and management actions of the SIPPOM and the requirements of the Gosford LEP as amended. The impacts on Aboriginal cultural heritage were found to be unacceptable and the site unsuitable for the proposed development.

Jurisdiction
Australia
Judgment Date
19 March 2012
Procedural Posture
Appeal (class 1) / Judgment After Hearing
Outcome
Appeal dismissed
Legal Topics
['development Application' 'aboriginal Heritage Protection' 'buffer Zones' 'sight Lines' 'industrial Development' 'somersby Industrial Park Plan of Management']
['planning Law' 'environmental Law' 'aboriginal Cultural Heritage'] ['development Application' 'aboriginal Heritage Protection' 'buffer Zones' 'sight Lines' 'industrial Development' 'somersby Industrial Park Plan of Management']

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Procedural Posture

Appeal (class 1) / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed industrial development at 7 Ainslie Close, Somersby, adequately protects Whale Rock and its Aboriginal cultural heritage significance as required by relevant planning instruments and the Somersby Industrial Park Plan of Management;' 'Whether the proposal complies with required buffer zones and sight line constraints;' 'What weight should be given to the Somersby Industrial Park Plan of Management (SIPPOM) and its specific management actions regarding Aboriginal heritage sites.']

Ratio Decidendi

The Court dismissed the appeal because the proposed development did not comply with the required buffer zone for Whale Rock, failed to respect the setting of the Aboriginal heritage site, and would block visibility (sight lines) between Whale Rock and other significant sites, contrary to the aims and management actions of the SIPPOM and the requirements of the Gosford LEP as amended. The impacts on Aboriginal cultural heritage were found to be unacceptable and the site unsuitable for the proposed development.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Development application 39393/2010 for the erection of a factory building and associated works at 7 Ainslie Close, Somersby is refused.' 'The exhibits are returned except for exhibits A and 2.']