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Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty Ltd) v Goulburn Mulwaree Council [2020] NSWLEC 1557 (12 November 2020)
New South Wales Land and Environment Court
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Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty Ltd) v Goulburn Mulwaree Council [2020] NSWLEC 1557 (12
November 2020)
Last Updated: 12 November 2020
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Land and Environment Court
New South Wales
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Case Name:
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Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty
Ltd) v Goulburn Mulwaree Council
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Medium Neutral Citation:
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Hearing Date(s):
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Conciliation conference on 28 October 2020
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Date of Orders:
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12 November 2020
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Decision Date:
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12 November 2020
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Jurisdiction:
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Class 1
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Before:
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O’Neill C
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Decision:
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The orders of the Court are: (1) The applicant is granted leave to amend
the development application to rely on the amended plans referred to in
condition 1 of
the conditions of consent at Annexure A. (2) Pursuant to s
8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is
to pay the Respondent’s costs thrown away as a result of the amendment of
the application, as agreed or assessed. (3) The appeal is upheld. (4)
Development Application No. 335/1819 for alterations and additions to an
existing dwelling on land at 14597 Hume Highway, Marulan
(Lot 2 DP 1138469) is
approved, subject to the conditions of consent at Annexure A.
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Catchwords:
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DEVELOPMENT APPLICATION — conciliation conference — agreement
between the parties
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Legislation Cited:
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Cases Cited:
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Category:
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Principal judgment
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Parties:
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Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty
Ltd) (Applicant) Goulburn Mulwaree Council (Respondent)
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Representation:
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Counsel: A Kliese (Solicitor) (Applicant) J Dorricott (Solicitor)
(Respondent)
Solicitors: Shaw Reynolds Lawyers (Applicant) Maddocks
Lawyers (Respondent)
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File Number(s):
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2019/382223
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Publication Restriction:
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Nil
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JUDGMENT
- COMMISSIONER:
This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental
Planning and Assessment Act 1979 (EPA Act) against the refusal of
Development Application No. 335/1819 for alterations and additions to an
existing dwelling (the
proposal) at 14597 Hume Highway, Marulan (Lot 2 DP
1138469) (the site) by Goulburn Mulwaree Council (the Council).
- The
Court arranged a conciliation conference under s 34 of the Land and
Environment Court Act 1979 (LEC Act) between the parties, which has been
held on 28 October 2020. I presided over the conciliation conference.
- At
the conciliation conference, the parties reached agreement as to the terms of a
decision in the proceedings that would be acceptable
to the parties.
- Under
s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the
parties’ decision, if the parties’
decision is a decision that the
Court could have made in the proper exercise of its functions. The
parties’ decision involves
the Court exercising the function under s 4.16
of the EPA Act to grant consent to the development application.
- There
are jurisdictional prerequisites that must be satisfied before this function can
be exercised. I accept the parties’ submission
regarding the reasons for
the satisfaction of jurisdictional pre-requisites at Annexure
B.
Planning framework
- The
site is zoned RU2 Rural Landscape pursuant to Goulburn Mulwaree Local
Environmental Plan 2009 (LEP 2009) and the proposal is permissible
with consent.
The objectives of the zone, to which regard must be had, are:
• To encourage sustainable primary industry production by maintaining and
enhancing the natural resource base.
• To maintain the rural landscape character of the land.
• To provide for a range of compatible land uses, including extensive
agriculture.
• To protect, manage and restore areas with high conservation, scientific,
cultural or aesthetic values.
• To protect and enhance the water quality of receiving watercourses and
groundwater systems and reduce their degradation.
• To preserve environmentally sensitive land, including catchment areas,
and prevent development likely to result in environmental
harm.
• To minimise the potential for conflict between adjoining land
uses.
- On
7 November 2019, the Council published a notice concerning the making of an
Interim Heritage Order No 1 over the site. On 17 December
2019, the Council
resolved to prepare a planning proposal to amend Sch 5 to LEP 2009 to add
“Wingello Park” (the site)
as an item of environmental heritage. On
21 January 2020, Council forwarded the planning proposal to the NSW Department
of Planning,
Industry and Environment (DPIE), with a request for a gateway
determination. On 17 February 2020, the DPIE issued a gateway determination
for
the Planning Proposal, subject to conditions, including that the Council consult
with certain public authorities. The Council
has consulted with those public
authorities in relation to the Planning Proposal. The Planning Proposal was
placed on public exhibition
on 20 March 2020 until 24 April 2020. Following the
receipt of submissions, the Planning Proposal was amended. The amended Planning
Proposal was re-exhibited on 10 July 2020 until 7 August 2020. On 8 October
2020, a further submission including a Heritage Impact
Assessment prepared by
Paul Davies Pty Ltd was provided to Council on behalf of the landowner. A post
exhibition report is now being
considered for the draft agenda for the Council
Meeting of 17 November 2020.
- Pursuant
to s 4.15(1)(a)(ii) of the EPA Act, the consent authority, or the Court
exercising the functions of the consent authority,
is to consider any proposed
instrument that is or has been the subject of public consultation under the EPA
Act, if it is of relevance
to the development the subject of a development
application in determining that development application. I accept that there is
a
high degree of certainty that the proposed instrument will be made (Terrace
Towers Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195;
[2003] NSWCA 289 at 199), because the planning proposal is confined to the
heritage listing of the site and there is broad agreement that the site
is of
heritage significance.
- The
proposal was amended following the agreement of the heritage experts on a scheme
for alterations and additions to the existing
dwelling that retains the
identified heritage values of the dwelling. I accept the parties’ agreed
submission that the amended
proposal is acceptable in terms of its impacts on
the identified heritage values of the existing
dwelling.
Orders
- The
orders of the Court are:
(1) The applicant is granted leave to amend
the development application to rely on the amended plans referred to in
condition 1 of
the conditions of consent at Annexure A.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act
1979, the applicant is to pay the Respondent’s costs thrown away as a
result of the amendment of the application, as agreed or assessed.
(3) The appeal is upheld.
(4) Development Application No. 335/1819 for alterations and additions to an
existing dwelling on land at 14597 Hume Highway, Marulan
(Lot 2 DP 1138469) is
approved, subject to the conditions of consent at Annexure A.
___________
Susan O’Neill
Commissioner of the Court
Annexure
A (327328, pdf)
Annexure
B (137213, pdf)
**********
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