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[2026] NSWLEC 1033
General information, not legal advice.
Land and Environment Court (NSW)
2026-01-29
Porter C
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Medium Neutral Citation: Goodman Stock & Station Pty Ltd v Tamworth Regional Council [2026] NSWLEC 1033
Hearing dates: 20-21 October 2025
Date of orders: 29 January 2026
Decision date: 29 January 2026
Jurisdiction: Class 1
Before: Porter C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to DA2024-0249 for the construction and use of the site for a local distribution premises (shipping containers) and associated carpark (time limited consent) at 31 Goddard Lane, Westdale subject to conditions of consent at Annexure A.
(3) All exhibits are returned, except for A, B and 1.
Catchwords: DEVELOPMENT APPEAL – time limited consent – appropriateness of time limited consent - shipping containers – new industrial precinct – desired character of new precinct – appeal of conditions
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.17, 8.7, 8.13, 9.34
Local Government Act 1993 (NSW), s 68
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Tamworth Regional Local Environmental Plan 2010
Cases Cited: Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641
Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22
BGP Properties Pty Limited v Lake Macquarie City Council (2024) 138 LGERA 237; [2004] NSWLEC 399
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Papadopoulos v Blue Mountains City Council [2015] NSWLEC 164
Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63
Willoughby City Council v Blanc Black Projects Pty Limited [2023] NSWLEC 54
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Texts Cited: Tamworth Community Participation Plan 2019
Tamworth Regional Development Control Plan 2010
Category: Principal judgment
Parties: Goodman Stock & Station Pty Ltd (Applicant)
Tamworth Council (Respondent)
Representation: Counsel:
T Poisel (Applicant)
J Smith (Respondent)
Solicitors:
Centurion Lawyers (Applicant)
Urban Legal (Respondent)
File Number(s): 2024/439289
Publication restriction: Nil
COMMISSIONER: This appeal is about the impacts of a proposed development to store shipping containers within a newly established industrial precinct.
The Applicant, Goodman Stock & Station Pty Ltd (Goodman Stock) has appealed, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) (NSW) Tamworth City Council’s (Council) grant of consent to Development Application No. DA2024-0249 (DA). Whilst consent was granted for use of the site for a local distribution premises (shipping containers) and associated car parking at 31 Goddard Lane, Westdale, Goodman Stock is dissatisfied with the terms of the consent. Namely, Goodman Stock seeks deletion of the following condition that imposes a time limit on the use of the site:
“3. To confirm and clarify Council’s terms of approval, this consent provides for a time limited use of the subject land (Lot 102 DP 1286236) for the purposes of a Local distribution premises (shipping containers), associated carpark and landscaping as per the endorsed plans, as follows:
a) The use as approved by this consent may only be in operation for a period of 36 months from the date of this approval. The approved use must cease operation on or before 31 July 2027. After the approved use ceases operation, all shipping containers stored onsite must be removed in entirety;
…”
As submitted by counsel for Goodman Stock, the DA seeks consent for:
Use of the site for a local distribution premises with storage areas for a maximum of 76 shipping containers comprising:
(a) 20 foot standard containers stacked three high across four columns and five rows (60 x 20 foot standard containers). (b) 20 foot high top containers stacked one height across two columns and five rows (10 x 20 foot high-top containers). (c) 40 foot containers stacked two high across three columns and one row (6 x 40 foot containers).
Landscaping along both street frontages with a range of heights.
Two driveways for access.
Stormwater works for three small pits (300mm x 300mm) and one large pit (600mm x 600mm), interconnecting drainage lines and exit pipe to the stormwater pit on Bandaar Drive.
14 car parking spaces (one accessible space).
With consideration of the evidence and submissions, I find that development consent should be issued on a time limited basis.
In 2016, Council acquired approximately 246 hectares of land with the stated aim of ‘securing the site of future industrial and business purposes’ (pp 4, Ex 3).
In 2017, Council initiated a planning proposal (PP) for the ‘Tamworth Enterprise Area – Glen Artney Westdale’. The PP related to identified land between Goddard Lane and Marathon Street, Westdale. The PP sought to rezone the acquired 246 hectares of land (PP site). The Council report of 22 August 2017 states that the PP is the outcome of over a decade of strategic planning and identifies several local and state strategic planning documents that the PP seeks consistency with. The PP sought to zone the PP site as a mix of industrial and business zones.
In September 2018, the PP site rezoning was completed, and the Tamworth Regional Local Environmental Plan 2010 (TLEP) was amended (pp 7, Ex 3).
In October 2018, a draft master plan and planning controls were resolved to be exhibited.
In 2021, Council resolved to exhibit further changes to the draft Tamworth Regional Development Control Plan 2010 (TDCP) for the PP site. Key changes included a desired future character statement, revised precinct plan showing the desired road layout and landscaping, other structure plan documents and diagrams and changes relating to fast track applications. The PP site was also changed in name from the ‘Tamworth Enterprise Area – Glen Artney Westdale’ to the ‘Tamworth Global Gateway Park’ (TGGP) (Ex 3, Tab 3). This was presumably successful in some form, as the applicable TDCP contains desired future character statements and refers to the site as the TGGP.
The 2025 Master Delivery Plan for the TGGP (Delivery Plan) states that the TPPG was purchased by Council to facilitate the Intermodal Freight Facility and provide industrial and commercial allotments. The Delivery Plan refers to future plans for public transport including bus routes and stops in front of the site. There was no evidence presented that these transport plans had substantially progressed.
On 2 November 2023, DA2023-0344 for construction of industrial sheds with associated carparking, landscaping and business identification signage was granted consent for the subject site.
On 31 July 2024, the subject DA, DA2024-0249, was granted development consent. Sometime thereafter, use of the site commenced for a local distribution premises.
Prior to the determination of the DA, the Applicant as named on the DA form agreed to a time limited consent.
Following determination of the DA, a s 8.3 review of determination was lodged to Council, seeking removal of the time limit. On 8 November 2024, Council refused the review. This appeal is not of the review of determination refusal.
On 9 May 2025, Council issued a compliance development control order (DCO) pursuant to s 9.34 of the EPA Act. I note that the DCO details an extensive number of other alleged non-compliances with the conditions of DA2024-0249 including landscaping, structures in proximity to the sewer line, parking, lighting, office premises, stormwater management and the placement of the shipping containers being contrary to the endorsed plans.
When the subject appeal was filed on 24 November 2024, DA2024-0249 ceased to have effect and could not be relied on for use of the site for a local distribution premises for the shipping containers pursuant to s 8.13(1) of the EPA Act.
On 15 August 2025, Council issued a notice of intention to stop use DCO as there was no longer a valid development consent for use of the site for a local distribution premises. The DCO also referred to an extensive number of conditions of consent that are alleged to be contravened, which appear to include more items than the previous DCO.
The subject site is known as 31 Goddard Lane, Westdale, legally known as Lot 102 in DP 1286236. The site is approximately 3,204m2 in size, with frontages to both Goddard Lane and Bandaar Drive.
Directly adjoining the site is a large substation. Current uses along Goddard Lane include an asphalt plant, shipping container storage facilities and other heavy industrial uses. Visually, the uses along Goddard Lane present parking areas, large gravel areas/driveways, shipping containers, warehouse buildings, trucks and plant machinery.
Nearby the site and within the visual catchment is a recently approved intermodal freight terminal, which was viewed from Burruulu Close. There are several recent consents directly surrounding the site, including the intermodal (some of which were tendered in exhibits 3, 5, 6, 7 and 10). The consents are generally for industrial sheds/units, warehouses and a local distribution centre.
The Court and parties undertook a site view on the first day of the hearing, including the subject site, surrounding properties and along Goddard Lane, Burruulu Close and Bandaar Drive. Shipping containers were observed on site.
The site is zoned E5 Heavy Industrial under the TLEP. Local distribution premises are permitted with consent, as an innominate use that is not prohibited in the zone.
The site is located in the Tamworth Global Gateway Park (TGGP), identified in the TDCP. The TGGP is a transition from former rural uses to industrial uses.
Council pressed that the time limited consent for three years should be imposed. At the hearing, Council offered a time limited consent for up to five years, subject to a reduction in height of the shipping containers.
Goodman Stock pressed that the development consent should be granted without a time limit imposed.
Goodman Stock pressed the following issues from its Statement of Facts and Contentions (Ex A), in that condition 3(a) should be deleted and that there should be no time limit imposed on the consent as:
The full implications of the proposed development are known with sufficient certainty, and a time limit is not appropriate.
The condition is so unreasonable that no reasonable planning authority should impose it.
Council pressed in their Statement of Facts and Contentions in Reply (Ex 1) that the proposed use, on a permanent basis, is inconsistent with the desired future character of the TGGP.
The key relevant controls are found in:
TLEP
(a) Zone H5 Heavy Industrial objectives
(a) 2 Industrial Development Controls (b) 4 Site Specific – Tamworth Global Gateway Park (TGGP)
“The Desired Future Character Statements below set the Council’s vision for the Tamworth Global Gateway Park Precinct. Development applications must, in addition to being consistent with the Development Control Plan (DCP), support the following:
• The TGGP should seek to support a wide range of compatible general and heavy industrial land uses such as import/export freight and logistics, manufacturing and food production that service the local and regional community and the intermodal/ airport facility.
• Developments should be of a high environmental design presenting a positive green image for the Tamworth LGA and adjoining regions. This will be achieved by complying with these development controls. Environmentally sensitive developments are encouraged.
• The siting of buildings on all lots should reflect the prescribed controls for front, rear and side setbacks to ensure setback control patterns are consistent throughout the TGGP.”
The planners agreed on the following aspects:
Time limited consents are available pursuant to s 4.17(d) of the EPA Act.
The site sits at the interface with the older industrial land to the west and is located at the intersection into the TGGP.
The proposed land use is permissible and supports freight and logistics.
The nearby intermodal facility features large open areas containing freight related goods and materials that include shipping containers.
Recent approvals in the vicinity of the site adopt more conventional industrial arrangements comprising industrial buildings, large areas of car parking and landscaping along the front setbacks, comparable to the 2023 consent granted on this site.
The location of the shipping containers on this site are generally in the same location as the approved industrial buildings under DA2023-0344.
The site is located within the TGGP as shown in the below extract the Planning JER. The subject site is shown with a star.
Mr Halliwell for Council says that the site is part of the broader TGGP, which was rezoned once the existing industrial precedent reached capacity. Council significantly financially invested in the TGGP to create a key employment and economic precinct for the region through a tailored precinct plan through the planning proposal process. The PP informed the rezoning and TDCP controls in Part 4.
Mr Halliwell’s evidence is that the character of the TGGP is to be different from the existing industrial precinct. The desired future character, as described in the character statement, requires development to be of a high environmental design and projecting a positive green image for the LGA and adjoining regions through the adopted planning controls. This character is being realised through the recent approvals within the TGGP at 19, 33, 37 and 49 Goddard Lane which will deliver high quality built form outcomes. The character of the area is shaped by these consents and the desired future character of the TGGP, which is to be a high quality employment and industrial precinct defined by contemporary, environmentally responsive design.
Mr Halliwell accepts that the proposal is permissible with consent, but is not appropriate for this site, which is a prominent gateway site in the TGGP.
Mr Halliwell says that the proposed use of the site for shipping containers in perpetuity does not achieve the objectives of the TGGP. The rudimentary, non-permanent structures (shipping containers) do not achieve the desired high quality presentation. Due to the location of the site, the proposal would set a benchmark and undesirable precedent for the precinct. Similar outcomes in the precinct would dilute the intent of the TGGP and erode the substantial investment made to establish a new industrial and employment precinct. Further, that an ongoing use consent would sterilise the site from redevelopment to higher value, environmentally responsive industries.
Mr Halliwell’s evidence is that the time limited consent serves a clear and legitimate purpose to enable the site to be used during the early transition phase of the TGGP. Short term use of the site for the proposal enables the site to be used but without prejudicing the achievement of the desired future character of the TGGP or land that has been strategically planned for a high quality gateway development. It was accepted in cross examination that the TDCP does not specifically nominate the site as a gateway site.
Mr Wood for Goodman Stock says that consent was issued on the basis of an acceptable outcome with consideration of s 4.15 of the EPA Act. The proposal was found to be acceptable and a temporary restriction of its operation does not change that evaluation. The use is either acceptable, or it isn’t.
Mr Wood’s evidence in relation to the reasons for refusing the s 8.2 review of the time limit condition imply that the development in its totality is not acceptable. These reasons relate to the unsuitability of the proposal regarding desired future character, street presence, lack of screening to the storage areas, fencing and unsuitability of materials. Mr Wood says that the acceptability of these impacts for a period of three years but not on an ongoing basis are difficult to understand.
Mr Wood’s evidence is that the proposal is an industrial style use envisaged by the TLEP for the precinct and supports the freight and logistic industries sought by the TGGP character statement. The use of the site for a local distribution premises also supports the intermodal facility that has commenced operation in the immediate vicinity of the site. The operation of the site for shipping containers is not incompatible with the range of industrial activities that the character statement encourages.
Mr Wood says that the proposal presents as a local distribution premises within a landscaped setting, with setbacks and landscaping that is consistent with the TDCP requirements for landscaping and siting of structures. The fencing of the site is high quality, high specification fencing (palisade fencing) that enhances the visual presentation of the premises to its street frontage. The E5 heavy industrial zoning of the site is distinctly different from E3 or E4 land identified in the TGGP. It is not a business park style setting but very much a functional heavy industrial zoning.
Mr Wood says that use of the site for shipping containers does not sterilise the site, particularly as the placement of the shipping containers is generally in the same area as the built form from the 2023 consent for the site.
Mr Wood’s evidence is that there is no reason that a three year limit should be imposed as the proposal is consistent with the outcomes for the TGGP, supports the intermodal facility, incorporates high quality fencing and landscaping to the street frontage areas, incorporates suitable parking and access, the shipping containers are not unsightly given the desired uses in the TGGP and suitable drainage measures are incorporated.
Goodman Stock uncontroversially submits that the task of the Court undertaking a merits review of an administrative decision is to make a ‘correct’ or ‘preferable’ decision based on the evidence before the Court (see: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 and Billyard Av**e Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 (Billyard) at [15]). The Court may receive fresh evidence in exercising the function of the consent authority.
The only substantive issue joined between the parties is whether a time limit condition should be imposed on the carrying out of the proposed development.
Goodman Stock submits that the validity of a condition is primarily governed by the statutory scheme comprised by the EPA Act and any applicable environmental planning instrument (see: Willoughby City Council v Blanc Black Projects Pty Limited [2023] NSWLEC 54 at [58]). Section 4.17(d) of the EPA Act allows the imposition of a condition to limit the period which a development may be carried out.
In Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang), the circumstances of that development warranted a probationary period. These circumstances do not exist here as the ongoing impacts are known. Council’s expert accepts in the Planning JER that the likely impacts are capable of being assessed with certainty. Secondly, again different from Zhang, the nature of the DA is not for a current use and may not be easily reversible in that the other physical works associated with use of the site for a local distribution centre are not readily reversible, except for removal of the shipping containers.
Goodman Stock submits that the time limit condition does not meet the Newbury tests established in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury) and Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 at [57]. Development consents do not usually impose a limit of duration as they are of indefinite duration and run with the land (see: Botany Bay City Council v Pet C**arriers International Pty Limited [2013] NSWLEC 147; 201 LGERA 116 at [113]. There is no justification or explanation for the three year period and the three years does not allow sufficient operational time for the other aspects of the consent to be met prior to commencement of the use (such as the s 68 approval under the Local Government Act 1993 (NSW) for the stormwater works). Similarly, the five year limit with associated reduction in height proposed in Council’s alternate conditions is not based on any evidence.
The Court has accepted that permitted development is generally consistent with the zoning, provided that the proposal results in acceptable environmental impacts (see BGP Properties Pty Limited v Lake Macquarie City Council (2024) 138 LGERA 237; [2004] NSWLEC 399 at [117]-[118]). The proposed development is permissible with consent and there are no unacceptable environmental impacts of the proposed development identified by Council’s expert or the Council’s assessment report (Ex 2, tab 8). It follows that development consent should be granted without a time limit condition.
Goodman Stock submits that Mr Halliwell’s evidence about the selection of more appropriate sites is not a relevant matter for consideration under s 4.15(1) of the EPA Act. Mr Halliwell’s evidence that the site is a gateway site, has a strategic role or has been earmarked for high quality gateway development would not be accepted as these are not references to the TDCP, which only refers to a red box denoting a ‘key intersection’ near the site on the precinct plan and the major ring road controls for Bandaar Drive. It was submitted that there was no evidence concerning non-compliances with the control in the TGGP chapter of the TDCP. Therefore, the proposed development is consistent with the desired future character of the TGGP.
Council submits that the proposed environmental impacts of the ongoing use of the proposal at this location are not acceptable. The proposal is inconsistent with the future desired character statement. Two key controls in the TDCP are relevant, in that there is no screening of the storage area or articulation or treatment of the buildings. Shipping containers are the antithesis of the building design controls, being eclectic in colours, lacking ability to achieve architectural interest and the nature of the containers to rust or peel.
Council submits that for the purposes of the TDCP, a shipping container is a building (see: Papadopoulos v Blue Mountains City Council [2015] NSWLEC 164 at [16]). The presentation of the proposed shipping containers is inconsistent with the building controls in Part 4 of the TDCP.
The TDCP has been applied consistently by Council and should be a focal point. The proposed shipping containers, a permissible use in the zone, do not achieve the controls of the TDCP to be placed behind a building line and behind a solid fence or achieve the objectives in the remainer of the TDCP.
Council submits that it is a reasonable planning decision to provide an economic benefit to the site in the short term while the TGGP develops. Of the 11 or so sites on Goddard Lane, six development consents have already been granted that are consistent with the character of the TGGP.
The TDCP also identifies the intersection in front of the site as a key intersection. Council has already constructed identification signage at this key intersection, including in front of the site and opposite the site.
Council submits that the three year consent is not intended to be a trial period, but a total limit on the operation of the proposed development.
I firstly acknowledged that an appeal of a condition is an appeal of the entire development consent. It was understood at the hearing that if the appeal was dismissed, that the DA would be refused. It was ultimately submitted by the parties that it was open to the Court to uphold the appeal in full or partially, if either of the parties’ cases were accepted. I agree with this approach.
Whilst the Applicant who was listed on the DA form had agreed to the condition to limit the use as temporary for a period of three years during the initial assessment by Council, the hearing of an appeal is a hearing de novo, where the Court re-exercises the functions of the consent authority to determine a development application (see: Billyard at [11]).
The only issue raised in these proceedings is whether a time limit should be imposed on the consent. I accept that the time limit consent was granted as the on-going visual impacts of the proposal were inconsistent with the future desired character of the TGGP.
It was submitted that the visual impacts of the proposal were not properly raised in Council’s contentions, I accept Dr Smith’s submissions that this issue was reasonably known and adequately contended based on the below information:
Paragraph 11 of the Statement of Facts and Contentions In Reply refers to the refusal of the removal of the time limited condition sought by the review application, on the basis of the desired future character of the TGGP and visual impacts from permanent use of the site for shipping container storage.
The reasoning in Council’s assessment report makes clear that the proposal is not an ‘ideal’ presentation of a high environmental design presenting a positive green image but is acceptable as it will only be used for the three year time limited three year period.
The expert planners’ discussion of future desired character and visual impacts in the Planning JER.
No requests were made from Goodman Stock for further or better particulars.
Council’s contention that the consent should be granted on a time limited basis stem from the impacts of the proposal on the future desired character statement for the TGGP in the TDCP. This states:
“The Desired Future Character Statements below set the Council’s vision for the Tamworth Global Gateway Park Precinct. Development applications must, in addition to being consistent with the Development Control Plan (DCP), support the following:
• The TGGP should seek to support a wide range of compatible general and heavy industrial land uses such as import/export freight and logistics, manufacturing and food production that service the local and regional community and the intermodal/ airport facility.
• Developments should be of a high environmental design presenting a positive green image for the Tamworth LGA and adjoining regions. This will be achieved by complying with these development controls. Environmentally sensitive developments are encouraged.
• The siting of buildings on all lots should reflect the prescribed controls for front, rear and side setbacks to ensure setback control patterns are consistent throughout the TGGP.”
In terms of design, the disputed salient part of the character statement is that “developments should be of a high environmental design presenting a positive green image for the Tamworth LGA and adjoining regions. This will be achieved by complying with these development controls. Environmentally sensitive developments are encouraged.” In considering the site specific controls of the TGGP, the controls appear to be generally geared to new industrial development with warehouse structures. Storage areas are generally referred to in conjunction with another building on site, as demonstrated by several figures in this part of the TDCP. A proposal comprising of only shipping containers is not necessarily envisaged by the controls, but is captured by several controls. These primarily are:
Under ‘site landscaping’, 5m landscaped areas to primary and secondary setbacks (the 3m exclusion does not strictly apply as the site has frontages to Goddard Lane and Bandaar Drive, though variations to this control were in evidence) are required. Landscaping is identified as a key outcome for sites fronting Goddard Lane and Bandaar Drive to encourage a high level presentation along these identified key roadways. This is reinforced by the requirement to provide a landscaping bond.
Under ‘fencing’, storage areas that are visible from a public place or street must be fenced by masonry materials or pre-coloured metal fencing behind the building line and be a minimum of 1.8m. The controls envisage a concurrent building on site.
The intersection in front of the site at Goddard Lane and Bandaar Drive is identified as a key intersection in the TGGP’s Precinct Plan. The ‘traffic and access’ controls also identify Goddard Lane as a principal access point to the TGGP.
Bandaar Drive forms part of the Ring Road, which has been identified for ‘street beautification’ in the Precinct Plan.
I am unable to accept the submissions that the shipping containers constitute a building in this instance. The facts in this case are different to other decisions of the Court where shipping containers have been found to be buildings, as they were intended to have some form of permanent use. As I understand the proposal, the purpose of these shipping containers is for them to be readily moveable. There is no permanency to them, and they will be used, moved and stacked as needed for distribution purposes. I therefore accept that the use of shipping containers in these circumstances are not buildings. This finding is consistent with Preston CJ’s findings in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 at [155] – [167] that there is an element of fact and degree in determining if a physical component of a proposal can be defined as a building or structure. I therefore have not considered the building controls in the TDCP.
I accept Mr Wood’s evidence that the proposed use for shipping containers supports the intermodal, and desired freight and logistics uses. It is the design and presentation of this use that is the key issue. The siting of the shipping containers is generally consistent with the approved industrial buildings in the 2023 DA for the site. It was agreed that the 2023 DA is consistent with the desired future character. The critical element is that the approved industrial buildings would present very differently to the proposed shipping containers.
I accept that the site is not a nominated gateway site but fronts a nominated key intersection. The character of new and approved development along the extent of Goddard Lane in the TGGP generally reflects the desired future character of new warehousing with landscaped areas, acknowledging there are variations to the TDCP controls. The development at 7 Goddard Lane is generally reflective of the new character of the TGGP, albeit with plant machinery on public display. Development outside the TGGP on Goddard Lane reflects a traditional style of heavy industrial development. The existing substation and planned expansion do not reflect the desired character of the TGGP. The intermodal itself includes a significant open storage area of shipping containers. However, I do not accept that this presentation of a different type of significant development justifies the design of this proposal.
The proposal is located on a visually prominent site that is identified as a key intersection into the TGGP. Due to its location, I accept that the presentation of an ongoing development should reflect the TDCP’s desired change from the established traditional industrial precinct into the high environmental design quality sought for the TGGP.
The aspects of the proposed development required some clarification during the hearing. The Statement of Environmental Effects prepared by NSW Development Project Management Pty Ltd that was filed with the Class 1 Application (SEE), describes that ‘construction works are limited to installation of a matt black 2100/1800mm perimeter security fence with sliding gates and stormwater works’. The SEE shows ‘representative’ open style security fencing and the architectural plans also indicate fencing. During the hearing, it was submitted that these fencing works have already occurred and are exempt development. The Council assessment report of the DA also indicated that the existing fence is exempt development. Given that the fence is both existing and likely exempt development, the fencing works should therefore not form part of the DA.
Relevantly, his Honour, Preston CJ stated in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] that:
“…an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”
To this end, the Class 1 Application, in particular the SEE, does nothing to meaningfully address the site specific section of the TDCP. The desired future character is not addressed, and the variations sought to the 5m setbacks and fencing controls are not acknowledged. The basis on which the SEE states that ‘external storage areas visible from public roads are screened’ is unknown as it gives no explanation to support this statement. For reasons that I set out below, it is clear that the storage of the shipping containers will be highly visible from the street.
It is only Mr Wood’s evidence that comprehensively seeks to address these aspects of the development. Mr Wood’s evidence is that the shipping containers are not unsightly given the desired uses in the TGGP and that high quality fencing and landscaping have been incorporated across the street frontages.
I find that the design of the development is inconsistent with the desired future character of the TGGP. The proposal has made little effort to screen the impacts of generally unsightly shipping containers. I prefer Mr Halliwell’s evidence that the proposal in its present form will not deliver a high quality, environmentally responsive development.
The future desired character statement states that a high environmental design is achieved through complying with the planning controls (being mindful of the prevailing requirements of s 4.15(3A)(b) of the EPA Act). Goodman Stock submits that the planning controls are substantially complied with. I do not accept this submission. The proposal does very little to minimise the key impact of the storage area, being the location of the shipping containers. The existing open style fencing on the site does little to screen the shipping containers. The proposed landscaping will assist to provide some screening, but will not meaningfully screen views of the shipping containers from the street or public. There is no fencing proposed or any design element that seeks to meet the description in the fencing controls that “…storage areas visible from a public place or street must be fenced by masonry materials or pre-coloured metal cladding fencing behind the building line and be of a minimum 1.8m height”. Whilst there is no building line, the control still applies and is seeking to somewhat obscure direct views into storage areas.
The proposal is a visually dominant, generally unscreened, storage area. This is demonstrated in the Planning JER from a photograph taken by Mr Halliwell. It is acknowledged that this photograph shows some unauthorised development (such as the office and placement of some containers), and does not show the proposed landscaping, but it does give an indication of the visual impacts of the shipping containers / storage area on the streetscape with the proposed fencing:
I accept that the design of the development and location of shipping containers will be highly visible from the street and public areas. I accept Council’s evidence and submissions that either a reasonable level of screening of the shipping containers from the streetscape or a well designed development is important in this location, as the TDCP identifies Bandaar Drive and Goddard Lane as a key intersection and Bandaar Drive as a street to be beautified in the TDCP’s Precinct Plan. This is where the proposal differs from the 2023 consent, where a new industrial building forms part of a well designed development supported by fencing and landscaping. Functional shipping containers used for distribution purposes, particularly those observed at the site view, do not form part of a well designed development and instead are a storage area with detracting design qualities that need to be somewhat screened as sought by the Part 4 of the TDCP.
Ordinarily, these are valid reasons to refuse the DA. However, I accept Council’s evidence and submissions that as there will be a buffer of time between the grant of the surrounding consents, the construction period, and the physical take up of consents that reflect the new character of the TGGP, that a time limited consent could be considered in these circumstances.
The surrounding consents that were provided during the hearing, whether through complying development or development applications, appear to have been granted from approximately 2022 onwards. Some have commenced construction or have been completed. The proposed time limited approach submitted by Council will allow the site to be utilised in a manner that supports the broader industrial zone, but will not allow it to impact on the future desired character of the TGGP as the use will cease before that desired future character comes into effect.
A time limited condition to allow an undesirable visual outcome through a transition period is not the usual approach. Notwithstanding, I accept that the proposal is acceptable for a limited time. The time limited condition serves a planning purpose, to enable a permissible use that is more reflective of traditional industrial uses until the future desired character is established. In addition, the site benefits from its 2023 consent that it may wish to take up, and that is consistent with the desired character of the TGGP. Accordingly, the visual impacts of the proposal will not impact on the desired future character, as it will be limited to the construction period / development take up period of the other consents for adjoining properties. These are also reasonable circumstances to allow flexibility to the TDCP controls in relation to character and visual presentation, until that character more physically appears.
It is noted that it would be open to the Applicant at a future time, to propose a modification or a new development that integrates high quality design elements with a suitable arrangement of shipping containers, that would seek to demonstrate how it is consistent with the desired future character of the TGGP.
Goodman Stock submitted that the basis for the three year timeframe is unclear. Other constraints such as construction works and obtaining the stormwater works approval will further reduce the actual operational period. Similarly, the proffered five year limit with associated reduction in height proposed in Council’s alternate conditions is not based on any evidence.
Notwithstanding that the use has commenced, I accept that a three year time limit is appropriate because:
Most development consents expire after five years if not physically commenced. Recent approvals range from 2022 to 2025 and some of these have commenced or completed works. Many of these consents relate to Goddard Lane. There is some uncertainty, but construction works in the coming years for those consents are reasonably anticipated. Three years from the date of this decision will allow those consents to be taken up and this use to cease, ensuring that this development will not impact on the desired future character of the area.
If the adjoining properties’ consents are not taken up or the character of the area does not change as envisaged, this may give weight to any future application to extend the time limited consent.
The other consent granted for the site, DA-2023/0344, will lapse on 2 November 2028 unless physically commenced. It was unclear at the hearing whether that consent had been taken up, but in any event, if not, this time limited consent will expire shortly after the 2023 consent. The person/s benefiting from the consents will have sufficient time to facilitate this limited consent and inform themselves on how they wish to proceed with the 2023 consent.
There is no evidence that Council would not promptly determine an adequately supported s 68 application. Council ultimately supported the subject DA and did not contend it should be refused in the hearing.
I accept that the proposed alternate five year period with the associated reduction in height was not informed by the evidence in either the Class 1 Application or evidence of the planning experts.
In relation to any issues between the existing consent (DA-2023/0344) and the proposed DA, I accept Mr Poisel’s submissions and Mr Wood’s evidence that only one consent can physically operate at any one time. In these circumstances, the consents are physically incapable of both operating at one time as the shipping containers are located in the same place as the industrial warehouses. There are no restrictions on a site benefiting from multiple consents, so long as they can operate in harmony. Accordingly, the existing consent does not cause any issues to the operation of the subject DA. DA-2023/0344 is also consistent with the TGGP’s desired future character and further supports the proposition of a time limited consent until the Applicant wishes to take up its 2023 consent.
I have considered the submissions that a time limit is generally utilised in circumstances where the full extent of impacts can only be known after a probationary period. I accept that time limited consents are commonly used for this purpose, with an appreciation that the environmental impacts of any such development during the time trial must still be considered prior to the grant of any time limited consent.
This is not a time limited consent for the basis of a trial or probationary period. There is no restriction under s 4.17(1)(d) of the EPA Act for a time limited consent to only apply for a probational or trial period. In my view, there is a valid planning purpose served by a time limited consent in circumstances such as these, where there is an anticipated change to the character of an area, but is not currently evident or is awaiting a substantial take up. This time limited consent will allow use of the site for a permitted use that, through its proposed design, is inconsistent with the desired future character of the TGGP. That future desired character is anticipated to be physically present in the next few years. I find that the impacts of the development are only acceptable on a short term basis until the desired future character takes sufficient hold of the TGGP.
In terms of the ability to reverse the consent at the end of the time limit, I consider that the use is readily reversable. The bulk of the development, the shipping containers, are easily removeable by their nature. The removal of driveways, lighting, stormwater works and other ancillary works at the end of the time limit are not significant physical works, and to my understanding, many of which are somewhat consistent with the existing 2023 consent or may be able to be adapted should the owner take up that consent. For these reasons, I find that none of the Newbury tests are offended by the imposition of the time limit condition in the development consent. Finally, to address any submissions that a time limited consent was not the proposal sought by the Applicant, I have considered that:
As is often the case, there are several aspects of the original DA that have changed from that described in the Class 1 application including the transportable office building and fencing.
The form of the appeal, as described in the Class 1 appeal, was made against the time limited condition. This is the same condition that was agreed to by the then Applicant (NSWDPM Pty Ltd) during the assessment process of the DA.
The Applicant is of course, entitled to change its mind or seek amendments to their proposal. I only make these findings in relation to the consistency of a time limited proposal when compared to the original proposed development.
With consideration of all of the above matters, I find that development consent should only be granted for the proposal with a time limit of three years from the date of this decision.
In accepting that development consent should be granted for a time limited period of three years, most of the conditions in dispute are no longer relevant as Council’s conditions reflect that time period.
I accept Goodman Stock’s proposed deletion or rewording of conditions 16 and 27 as those aspects are repetitive of other landscaping conditions. I also accept the deletion of condition 19 as fencing is not proposed.
I accept the parties’ submissions that there are no jurisdictional barriers to the grant of consent. I have considered Council’s assessment report and clarifications to applicable environmental planning instruments made during opening and closing submissions during the hearing, and am satisfied that the proposed development meets all the relevant provisions. In particular I note that:
The Tamworth Community Participation Plan 2019 does not require public exhibition of the DA. By extension, there were no community submissions received.
The movement of the shipping containers by a crane has been considered and included in the conditions of consent to ensure the crane is below the obstacle limitation surface height for Tamworth Airport.
There are no known Aboriginal items identified on the site and therefore, there will be no impacts to Aboriginal Heritage as a result of the proposed development.
The Site Investigation Report prepared by Geo-Logix for a previous application in 2021 found that there was no contamination on the site. Council did not identify any new contamination of the site and s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 is met.
A condition of consent has been incorporated to require a separate approval of the stormwater works under s 68 of the Local Government Act 1993 (NSW).
The Court orders that:
The appeal is upheld.
Development consent is granted to DA2024-0249 for the construction of use of the site for a local distribution premises (shipping containers) and associated carpark (Time Limited Consent) at 31 Goddard Lane, Westdale subject to conditions of consent at Annexure A.
All exhibits are returned, except for A, B and 1.
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Correct to picture under par [72]
Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), Annexure A has been amended at conditions 3.a, 3.f, 3.g, 20.
Goodman Stock & Station Pty Ltd
Tamworth Regional Council [2026] NSWLEC 1033
(2024) 138 LGERA 237
(2013) 201 LGERA 116
(1979) 24 ALR 577
(2004) 221 CLR 30
(2001) 51 NSWLR 589