Newland Developers Pty Ltd v Tweed Shire Council [2017] NSWLEC 1021

Land and Environment Court New South Wales

Medium Neutral Citation: Newland Developers Pty Ltd v Tweed Shire Council [2017] NSWLEC 1021 Hearing dates: 15 August 2016, 9 January 2017 Date of orders: 24 January 2017 Decision date: 24 January 2017 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION: subdivision, nomination as school site in development control plan Legislation Cited: Environmental Planning and Assessment Act 1979; Tweed Local Environmental Plan 2014; Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 Texts Cited: Tweed Development Control Plan 2008; Category: Principal judgment Parties: Newland Developers Pty Ltd (Applicant)

Tweed Shire Council (Respondent) Representation: Counsel: Ms S Duggan (Applicant) Mr M Staunton (Respondent)

Solicitors: Bolster & Co (Applicant) Maddocks Lawyers (Respondent) File Number(s): 162983/2016

Judgment 1. Newland Developers Pty Ltd (Newland) lodged Development Application No. DA 15/0422 with Tweed Shire Council on 3 June 2015 seeking consent to subdivide land known as Lot 1147 DP 1115395 into 65 lots over two stages. The council formally refused consent and issued its Notice of Determination on 13 October 2015. 2. Newland is appealing that determination pursuant to the provisions of s97(1) of the Environmental Planning and Assessment Act 1979 (EP&AAct).

The site and its context 1. The site forms part of a residential area known as the Seabreeze Estate which is located to the north west of the Pottsville Village Centre and to the north of Pottsville Road. Land to the north of the estate comprises sporting fields, canefields and environment protection areas. Land to the south primarily comprises rural and forested areas. Cudgera Creek forms the northern boundary of the site. 2. Lot 1147 is located on the north western corner of Seabreeze Boulevard and Tom Merchant Drive. It has been filled to address flooding constraints in accordance with earlier consents that applied to the estate. 3. Seabreeze Estate has been developed with detached dwellings, some medium density development and a seniors living facility since the original consent was granted. According to evidence provided during the hearing consent has also been granted to establish a child care centre and indoor recreation facility opposite the site with a neighbourhood centre also planned, identified on documents issued by the applicant. A number of public reserves are located throughout the area and the estate is serviced by bus. 4. According to the council's Statement of Facts and Contentions, the site is now legally described as Lot 1540 in DP 1207462. It has an area of 5.692ha and a drainage reserve divides the site into two separate parts. 5. Land on the opposite side of Seabreeze Boulevard comprises detached housing. 6. The site is prone to bushfire, flooding and is within a sensitive coastal location.