Bird in the Hand 1 Pty Ltd v Tweed Shire Council [2024] NSWLEC 1709

Land and Environment Court New South Wales

Medium Neutral Citation: Bird in the Hand 1 Pty Ltd v Tweed Shire Council [2024] NSWLEC 1709 Hearing dates: 26 February - 1 March and 4 April 2024, final submissions 18 August 2024 Date of orders: 06 November 2024 Decision date: 06 November 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Tweed Shire Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant further amending Development Application 21/0404 such as to accommodate the plans and documents as set out in condition 1 of the draft conditions of consent as filed with the Court on 27 May 2024. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that were thrown away as a result of amending the development application as agreed or assessed. (3) The appeal is dismissed. (4) Development Application 21/0404 for a rural residential community title subdivision at 67 Scenic Drive Bilambil Heights, which is Lot 7 in DP 853589, is determined by refusal of the grant of consent to the application. (5) The Exhibits are returned, except Exhibits 1, 14, A, C and H which are retained. Catchwords: APPEAL – development application – rural residential subdivision – community title subdivision – steep gradients - bushfire risk management – adequacy of access to hazard vegetation for bushfire suppression – climate change and bushfire risk management – adequacy of response to threatened species – more positive than negative ecological and biodiversity outcomes – risk and consequences of failure of internal access road Legislation Cited: Biodiversity Conservation Act 2016, s 7.13 Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7, 8.14, 8.15 Land and Environment Court Act, s 39 Rural Fires Act 1997, ss 63, 100B Environmental Planning and Assessment Regulations 2000, cl 55 Tweed Local Environmental Plan 2014 Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and anor (2010) 210 LGERA 126; [2010] NSWLEC 48 Salama v Northern Beaches Council [2020] NSWLEC 140 Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 Texts Cited: NSW Climate Change Adaptation Strategy Tweed Development Control Plan 2008 Tweed Road Development Strategy 2017 Category: Principal judgment Parties: Bird in the Hand 1 Pty Ltd (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: G Farland (Applicant) C Norton (Respondent)