Signature Gardens Retirement Resort Pty Limited v Cessnock City Council [2013] NSWLEC 1070

Land and Environment Court New South Wales

Medium Neutral Citation: Signature Gardens Retirement Resort Pty Limited v Cessnock City Council [2013] NSWLEC 1070 Hearing dates: 12,13,14 December 2012, 20,21,22 February 2013 Decision date: 24 April 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Development Application 8/2011/415/1 for the construction of a development for seniors or people with a disability at the corner of Marrowbone Road and Oakey Creek Road Pokolbin is refused. 3. The exhibits are returned with the exception of exhibit 19. Catchwords: DEVELOPMENT APPLICATION: construction of a development for seniors or people with a disability - whether permissible development - whether contrary to the existing and preferred future use of the land for winegrowing activities - whether the proposed development may restrict winegrowing activities on nearby and adjoining properties by way of complaints - impact on the visual character of the area - stormwater disposal - availability of water and disposal of sewage - inadequate protection from bushfires - inadequate access to local services Legislation Cited: Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302 Cessnock Local Environmental Plan 1989 Cessnock Local Environmental Plan 2011 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Rural Lands) 2008 Cases Cited: ACN 115 840 509 Pty Ltd v Kiama Municipal Council (2006) 145 LGERA 147, Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52, Fairview Estates Vineyard Pty Ltd v Mid-Western Regional Council (2005) 143 LGERA 253, Hornsby Shire Council v Malcolm (1986) 60 LGERA 429, Minister for Immigration, Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, Mathieson v Burton (1971) 124 CLR 1, Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 243 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195. Category: Principal judgment Parties: Signature Gardens Retirement Resort Pty Limited (Applicant) Cessnock City Council (Respondent) Representation: Counsel Mr P Clay SC with Ms A Hemmings, barrister (Applicant) Mr T Robertson SC (Respondent) Solicitors Caldwell & O'Brien Solicitors (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 10874 of 2012