Investments NQ Pty Ltd v Tweed Shire Council [2024] NSWLEC 1108

Investments NQ Pty Ltd v Tweed Shire Council [2024] NSWLEC 1108

The Court accepted the applicant's submission that the letter from Crown Lands provided valid owner's consent for lodging the application. However, the Council's interpretation of s 2.7(2) of the SEPP (Resilience and Hazards) 2021—that the proposal for subdivision is designated development as it includes land mapped as littoral rainforest—was found to be correct. Hence, without an environmental impact statement, consent cannot be granted for the subdivision component; the application can proceed only as a dual occupancy development excluding subdivision.

Parties
Applicant: Investments NQ Pty Ltd; Respondent: Tweed Shire Council
Jurisdiction
Australia
Judgment Date
14 March 2024
Procedural Posture
Appeal Against Refusal of Development Application / Judgment After Hearing and Directions Issued
Outcome
Interim judgment; subdivision works excluded; parties to file revised conditions
Legal Topics
Development Application, Torrens Title Subdivision, Environmental Impact Statement, Owner's Consent, Designated Development, Littoral Rainforest, SEPP (resilience and Hazards), Land Use Zoning
Planning and Environment Law Development Application Torrens Title Subdivision Environmental Impact Statement Owner's Consent Designated Development Littoral Rainforest SEPP (resilience and Hazards) +1 more

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Parties

Investments NQ Pty Ltd

Applicant

Tweed Shire Council

Respondent

Procedural Posture

Appeal Against Refusal of Development Application / Judgment After Hearing and Directions Issued

Legal Issues

  1. 1 Whether owner's consent from NSW Crown Lands for works in the public reserve satisfies jurisdictional pre-requisites for the application
  2. 2 Whether the application for subdivision constitutes 'designated development' under s 2.7(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021, requiring an environmental impact statement

Ratio Decidendi

The Court accepted the applicant's submission that the letter from Crown Lands provided valid owner's consent for lodging the application. However, the Council's interpretation of s 2.7(2) of the SEPP (Resilience and Hazards) 2021—that the proposal for subdivision is designated development as it includes land mapped as littoral rainforest—was found to be correct. Hence, without an environmental impact statement, consent cannot be granted for the subdivision component; the application can proceed only as a dual occupancy development excluding subdivision.

Court Disposition

Interim judgment; subdivision works excluded; parties to file revised conditions

Orders

  • The parties are directed to file a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works, within two weeks of the date of this judgment.