HASTINGS POINT PROGRESS ASSOCIATION INC v TWEED SHIRE COUNCIL [2009] NSWCA 285

HASTINGS POINT PROGRESS ASSOCIATION INC v TWEED SHIRE COUNCIL [2009] NSWCA 285

The Court (majority: McColl JA, Young JA) held that cl 8(1) of the TLEP mandated refusal unless its cumulative impact condition was satisfied and therefore could not operate concurrently with cl 17 of the SEPP-SL, which allowed senior living development despite other instruments if carried out in accordance with the Policy; this produces statutory inconsistency under s36 of the EP&A Act, so SEPP-SL prevails. The dissent (Basten JA) considered that no inconsistency arose because SEPP-SL was not an exclusive code and did not preclude consideration of local plan matters not specifically addressed.

Parties
Appellant: Hastings Point Progress Association Inc; First Respondent: Tweed Shire Council; Second Respondent: Aeklig Pty Ltd
Jurisdiction
Australia
Judgment Date
11 September 2009
Procedural Posture
Appeal / Judgment of Court of Appeal, Special Leave Application to High Court Dismissed
Outcome
Appeal dismissed with costs; application for special leave to High Court dismissed with costs
Legal Topics
Planning Schemes and Instruments, Consistency and Construction of Planning Instruments, Meaning of 'inconsistency', Statutory Interpretation, Development Consent, Cumulative Impact
Environment and Planning Statutory Interpretation Planning Schemes and Instruments Consistency and Construction of Planning Instruments Meaning of 'inconsistency' Development Consent Cumulative Impact

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 20 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Hastings Point Progress Association Inc

Appellant

Tweed Shire Council

First Respondent

Aeklig Pty Ltd

Second Respondent

Procedural Posture

Appeal / Judgment of Court of Appeal, Special Leave Application to High Court Dismissed

Legal Issues

  1. 1 Whether cl 8(1) of the Tweed Local Environmental Plan 2000 (TLEP) is inconsistent with cl 17 of State Environmental Planning Policy (Seniors Living) 2004 (SEPP-SL) for the purposes of s 36 of the Environmental Planning and Assessment Act 1979 (NSW), due to mandatory refusal requirements vs permissive development provisions.
  2. 2 Whether the SEPP-SL constitutes an exclusive code covering relevant considerations for consent.
  3. 3 Correct approach to ascertain inconsistency under s 36 of the Environmental Planning and Assessment Act 1979 (NSW) and cl 5(3) of SEPP-SL.

Ratio Decidendi

The Court (majority: McColl JA, Young JA) held that cl 8(1) of the TLEP mandated refusal unless its cumulative impact condition was satisfied and therefore could not operate concurrently with cl 17 of the SEPP-SL, which allowed senior living development despite other instruments if carried out in accordance with the Policy; this produces statutory inconsistency under s36 of the EP&A Act, so SEPP-SL prevails. The dissent (Basten JA) considered that no inconsistency arose because SEPP-SL was not an exclusive code and did not preclude consideration of local plan matters not specifically addressed.

Court Disposition

Appeal dismissed with costs; application for special leave to High Court dismissed with costs

Orders

  • Appeal dismissed with costs
  • Special leave application to High Court dismissed with costs