Hallidays Point Development Pty Limited and anor v Greater Taree City Council (No 2) [2008] NSWLEC 1446

Hallidays Point Development Pty Limited and anor v Greater Taree City Council (No 2) [2008] NSWLEC 1446

The amended proposal was not prohibited by cl 35 because the only access element previously found to contravene that clause had been removed, and the Commissioner was bound by Lloyd J's earlier finding that access of the kind proposed was not direct access to an arterial road. The amended concept, with all equestrian facilities brought into the first construction stage and with deletion of 43 sites and related layout changes, could satisfy the rural tourist facility objective, relevant LEP objectives and cl 4.14 of the DCP. Bushfire matters were capable of detailed resolution in later development applications. Conditions requiring an overbridge, subway, or bicycle path were unreasonable....

Jurisdiction
Australia
Judgment Date
04 November 2008
Procedural Posture
Development Appeal Concerning a Staged Concept Plan for a Rural Tourist Facility / Judgment After Hearing; Appeal Upheld Subject to Amended Plans and Settled Conditions
Outcome
Appeal upheld; concept plan approved subject to amended concept and staging plans and revised settled conditions.
Legal Topics
['staged Development' 'concept Plan' 'rural Tourist Facility' 'development Control Plan' 'local Environmental Plan Objectives' 'arterial Road Access' 'bushfire Protection' 'pedestrian Safety' 'development Consent Conditions' 'constructive Refusal']
['planning and Environment Law' 'development Consent' 'land Use Planning'] ['staged Development' 'concept Plan' 'rural Tourist Facility' 'development Control Plan' 'local Environmental Plan Objectives' 'arterial Road Access' 'bushfire Protection' 'pedestrian Safety' 'development Consent Conditions' 'constructive Refusal']

Case Brief

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Procedural Posture

Development Appeal Concerning a Staged Concept Plan for a Rural Tourist Facility / Judgment After Hearing; Appeal Upheld Subject to Amended Plans and Settled Conditions

Legal Issues

  1. 1 ['Whether cl 35(2) of the Greater Taree Local Environmental Plan 1995 prohibited the concept because of access to Blackhead Road.' 'Whether the concept was prohibited because it failed to satisfy the relevant aims, general rural zone objectives, or 1(a) Rural General zone objectives of the Greater Taree Local Environmental Plan 1995.' 'Whether the proposal merited approval having regard to cl 4.14 of the Greater Taree Development Control Plan 1995 and visual, rural character and tourism values.' 'Whether bushfire protection issues prevented approval at concept stage.' 'Whether proposed cafe and service station facilities could be treated as ancillary to the rural tourist facility.' 'Whether conditions requiring an overbridge or subway, and construction or funding of a bicycle path, should be imposed.' 'Whether deletion of sites needed to make the proposal acceptable would amount to constructive refusal.']

Ratio Decidendi

The amended proposal was not prohibited by cl 35 because the only access element previously found to contravene that clause had been removed, and the Commissioner was bound by Lloyd J's earlier finding that access of the kind proposed was not direct access to an arterial road. The amended concept, with all equestrian facilities brought into the first construction stage and with deletion of 43 sites and related layout changes, could satisfy the rural tourist facility objective, relevant LEP objectives and cl 4.14 of the DCP. Bushfire matters were capable of detailed resolution in later development applications. Conditions requiring an overbridge, subway, or bicycle path were unreasonable....

Court Disposition

Appeal upheld; concept plan approved subject to amended concept and staging plans and revised settled conditions.

Orders

  • ['The appeal is upheld.' 'Concept Plan for a 292 sites rural tourist facility incorporating equestrian facilities, community playing fields and ancillary retail, cafe and service station facilities at Blackhead Road, Hallidays Point, is approved.' 'The exhibits are returned.' 'The applicant is directed to file and...