Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Land and Environment Court New South Wales

Medium Neutral Citation: Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 Hearing dates: 3-6, 11-14 June 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Jurisdiction: Class 1 Before: Preston CJ Decision: (1) The appeal is upheld. (2) Development consent is granted to development application DA 2015/00096 for a concept proposal for the subdivision of land at 240 Iron Gates Drive, Evans Head, being Lot 163 in DP831052 and Lots 276 and 277 in DP755624, and a detailed proposal for Stage 1 of the development, subject to conditions, as stated in the development consent annexed and marked as 'Annexure A'. Catchwords: ENVIRONMENT AND PLANNING – Consent development application – concept proposal for residential subdivision and detailed proposal for first stage – prior unauthorised works for different subdivision – whether development consent can be granted to amend and use some unauthorised works – mapped coastal wetlands on land – subdivision of whole land but not part of land mapped coastal wetlands – whether development is designated development – applicable environmental planning instrument – current instrument provides for designated development – whether accrued right for application of former instrument – impact on Koala – whether land is a potential koala habitat or a core koala habitat – no development on either habitat – impact on Wallum Froglet – no development in habitat – impact on littoral rainforest – whether sufficient buffer width to protect – use of neighbouring land for native title rights – impact on – whether sufficient buffer to protect – Aboriginal cultural heritage sites – cultural landscape, midden and burial site – impact on – development will not diminish cultural landscape – no development on midden or burial site ENVIRONMENTAL PLANNING INSTRUMENTS – saving and transitional provisions – development application lodged under former instruments - former instruments had savings provisions – current instruments do not have saving provisions – operation of Interpretation Act – whether saves accrued right to have development application determined under former instruments Legislation Cited: Biosecurity Act 2015 (NSW) Community Land Development Act 2021 (NSW) Conveyancing Act 1919 (NSW), ss 88B, 195 Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.10, 4.15, 4.16, 4.22, 4.46, 8.7 Interpretation Act 1987 (NSW), ss 5, 30 Land and Environment Court Act 1979 (NSW), s 39 National Parks and Wildlife Act 1974 (NSW), s 90 Public Roads Act 1902 Roads Act 1993 (NSW), s 138 Rural Fires Act 1997 (NSW), s 100B Water Management Act 2000 (NSW), s 90 Environmental Planning and Assessment Regulation 2021 (NSW), cl 37 Richmond Valley Local Environmental Plan 2012 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy (Koala Habitat Protection) 2021 State Environmental Planning Policy No 14 – Coastal Wetlands State Environmental Planning Policy No 44 – Koala Habitat Protection State Environmental Planning Policy No 71 – Coastal Protection State Environmental Planning Policy (Resilience and Hazards) 2021 Biosecurity (Invasive Ant Carriers) Control Order 2023 Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Bandjalang People No 1 and No 2 v Attorney General of NSW [2013] FCA 1278 Bandjalang People No 3 v Attorney General of NSW [2021] FCA 386 CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97 Lorenzato v Burwood Council [2017] NSWLEC 1269 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Kouflidis v Salisbury City Corporation (1982) 29 SASR 321; 49 LGERA 17 Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630 Oshlack v Iron Gates Pty Ltd (1997) 130 LGERA 189 Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89 Oshlack v Richmond River Shire Council and Iron Gates Development Pty Ltd (1993) 82 LGERA 222; [1993] NSWLEC 3 Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207 Richmond-Evans Environmental Society Inc v Iron Gates Developments Pty Ltd, unreported Land and Environment Court, No 40158 of 1991, Bannon J, 20 December 1991 Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614 The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178; [2004] NSWCA 424 Wilson v Iron Gates Pty Ltd, unreported Land and Environment Court No 40172 of 1996, Stein J, 2 December 1996 Category: Principal judgment Parties: Goldcoral Pty Ltd (Receiver and Manager Appointed) (Applicant) Richmond Valley Council (First Respondent) Simone Barker (Second Respondent) Representation: Counsel: P Tomasetti SC and A Hemmings (Applicant) M Astill (First Respondent) L Sims (Second Respondent)