Hastings Point Progress Association Inc v Tweed Shire Council and Aeklig P/L

September 2009 & March 2010

Hastings Point Progress Association Inc (HPPA) appealed to the NSW Court of Appeal a decision of the Land and Environment Court that held that certain provisions of the Tweed LEP were inconsistent with the Seniors Living SEPP (as it was then called) and therefore did not need to be considered by Tweed Shire Council when it granted consent to a seniors living development.

The particular provision of the Tweed LEP mandates that Tweed Shire Council cannot consent to development if it is determined that it will have an unacceptable cumulative impact on the community, locality or catchment or on the area of Tweed as a whole. HPPA argued in the first instance that Tweed Shire Council failed to satisfy itself that the seniors living development would not have an unacceptable cumulative impact on the community, locality or catchment, and it ought to have.

HPPA believes that the development will have an unacceptable cumulative impact on the community, locality or catchment. It is the first development of significant bulk, scale and height and amounts to over-development of the coastal village of south Hastings Point.

In the Court of Appeal, HPPA argued that the trial judge fell into error as the Tweed LEP clause was not inconsistent with the Seniors Living SEPP and it ought to have been considered.

The Court of Appeal delivered a split decision. Basten J found for HPPA in dissent and McColl J and Young J found against HPPA. The appeal was lost and costs were awarded against the community group.

EDO NSW acknowledges and thanks P Greenwood SC and A Pickles of Counsel for their appearance and contribution to the case.

Notice of Appeal

Judgment - Application to amend orders from dismissing appeal to allowing appeal

Judgment - Order on costs

Appeal