NCV Enterprises Pty Ltd v Tweed Shire Council [2024] NSWLEC 14

NCV Enterprises Pty Ltd v Tweed Shire Council [2024] NSWLEC 14

The concept DA sought consent for a concept proposal for 10 rural land sharing communities and Stage 1 road and earthworks, and a concept development application remains a development application to which the EPAA and relevant environmental planning instruments apply. Clause 4(1)(a) of Sch 5 to the Primary Production SEPP, using the present tense and requiring the land to be a single lot of not less than 10 hectares, imposed a present statutory precondition to the grant of consent that was not met because the land was presently multiple lots; cl 4(1)(g) was likewise not satisfied because the concept proposal was inconsistent with the aims of Sch 5. The inclusion of later roads,...

Jurisdiction
Australia
Judgment Date
23 February 2024
Procedural Posture
Class 1 Appeal Against Refusal of Concept Development Application DA 21/0010 / Determination of Separate Questions Pursuant to R 28.2 of the Uniform Civil Procedure Rules 2005
Outcome
Separate questions answered: first no; second no; third yes; fourth yes; fifth not necessary, but if the fourth answer were no then fifth yes. The matter was listed before the Registrar for further directions and exhibits were to be returned.
Legal Topics
['concept Development Applications' 'rural Land Sharing Communities' 'primary Production Sepp' 'development Standards' 'clause 4.6 Exceptions' 'separate Questions']
['planning and Environment Law' 'development Consent' 'statutory Interpretation'] ['concept Development Applications' 'rural Land Sharing Communities' 'primary Production Sepp' 'development Standards' 'clause 4.6 Exceptions' 'separate Questions']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Concept Development Application DA 21/0010 / Determination of Separate Questions Pursuant to R 28.2 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether the Court had power to grant consent to concept development application DA 21/0010 where cl 4(1)(a) of Sch 5 to the Primary Production SEPP could not be satisfied until later development applications.' 'Whether the Court had power to grant consent to concept development application DA 21/0010 where cl 4(1)(g) of Sch 5 to the Primary Production SEPP could not be satisfied until later development applications.' 'Whether the Court had power to grant consent where land the subject of subsequent stages extended beyond a proposed single lot and included roads, infrastructure and rehabilitation areas on other proposed lots.' 'Whether the Court had power to grant consent, other than pursuant to cl 4.6 of the Tweed Local Environmental Plan 2014, where cl 7 of Sch 5 to the Primary Production SEPP could not be met until later development applications.' 'If cl 7 of Sch 5 to the Primary Production SEPP precluded consent, whether the Court had power to grant consent pursuant to cl 4.6 of the Tweed Local Environmental Plan 2014.']

Ratio Decidendi

The concept DA sought consent for a concept proposal for 10 rural land sharing communities and Stage 1 road and earthworks, and a concept development application remains a development application to which the EPAA and relevant environmental planning instruments apply. Clause 4(1)(a) of Sch 5 to the Primary Production SEPP, using the present tense and requiring the land to be a single lot of not less than 10 hectares, imposed a present statutory precondition to the grant of consent that was not met because the land was presently multiple lots; cl 4(1)(g) was likewise not satisfied because the concept proposal was inconsistent with the aims of Sch 5. The inclusion of later roads,...

Court Disposition

Separate questions answered: first no; second no; third yes; fourth yes; fifth not necessary, but if the fourth answer were no then fifth yes. The matter was listed before the Registrar for further directions and exhibits were to be returned.

Orders

  • ['The matter is listed before the Registrar on 8 March 2024 for further directions.' 'The exhibits are to be returned.']