Hunter Valley Wine Services Pty Ltd v Muswellbrook Shire Council [2011] NSWLEC 1232

Hunter Valley Wine Services Pty Ltd v Muswellbrook Shire Council [2011] NSWLEC 1232

The proposed landscaping was accepted as an appropriate long-term method to reduce the visual impact of the vertical and horizontal tanks, but it would take years to become effective and would not adequately address short-term visual impact or glare from the vertical tanks. Because the evidence did not justify removing the existing painting requirements for the vertical tanks or show significant changed circumstances warranting a different conclusion, the vertical tanks had to be painted within three months of final orders, with an amended colour scheme to be considered. The condition requiring painting of the lower western tanks could be deleted because landscaping would provide an...

Jurisdiction
Australia
Judgment Date
05 July 2011
Procedural Posture
Class 1 Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent / Onsite Hearing; Directions Issued, With Final Orders to Be Issued in Chambers
Outcome
Directions made for the parties to file an agreed colour scheme and conditions, with liberty to restore; final orders to be issued in Chambers.
Legal Topics
['modification of Development Consent' 'visual Impact' 'landscaping Conditions' 'glare From Storage Tanks' 'industrial Development Adjoining Residential Land']
['planning and Environmental Law'] ['modification of Development Consent' 'visual Impact' 'landscaping Conditions' 'glare From Storage Tanks' 'industrial Development Adjoining Residential Land']

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Procedural Posture

Class 1 Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent / Onsite Hearing; Directions Issued, With Final Orders to Be Issued in Chambers

Legal Issues

  1. 1 ['Whether the proposed landscaping scheme would adequately mitigate the visual impact of the vertical and horizontal storage tanks in the short term and long term.' 'Whether conditions requiring painting of vertical and horizontal tanks and reflective surfaces should be deleted or amended.' 'Whether there were changed circumstances justifying departure from conditions previously resolved by consent orders in Appeal 10040 of 2008.' 'Whether the proposed amendments to conditions concerning removal of disused containers and landscaping height should be accepted.']

Ratio Decidendi

The proposed landscaping was accepted as an appropriate long-term method to reduce the visual impact of the vertical and horizontal tanks, but it would take years to become effective and would not adequately address short-term visual impact or glare from the vertical tanks. Because the evidence did not justify removing the existing painting requirements for the vertical tanks or show significant changed circumstances warranting a different conclusion, the vertical tanks had to be painted within three months of final orders, with an amended colour scheme to be considered. The condition requiring painting of the lower western tanks could be deleted because landscaping would provide an...

Court Disposition

Directions made for the parties to file an agreed colour scheme and conditions, with liberty to restore; final orders to be issued in Chambers.

Orders

  • ['Within three weeks the parties are to file an agreed colour scheme and conditions.' 'Liberty to restore on two days notice.' 'Final orders will be issued in Chambers.']