Byron Highlander Estate Pty Ltd v Ballina Shire Council

[2018] NSWLEC 1589

Land and Environment Court

New South Wales

Medium Neutral Citation:	Byron Highlander Estate Pty Ltd v Ballina Shire Council [2018] NSWLEC 1589
Hearing dates:	Conciliation conference on 30 October 2018
Date of orders:	14 November 2018
Decision date:	14 November 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [6] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Ballina Local Environmental Plan 1987 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 NSW Noise Policy for Industry (2017) Rural Fires Act 1997 State Environmental Planning Policy No. 44 – Koala Habitat Protection State Environmental Planning Policy No. 55 – Remediation of Land State Environmental Planning Policy (Mining and Extractive Industries) 2007
Category:	Principal judgment
Parties:	Byron Highlander Estate Pty Ltd (Applicant) Ballina Shire Council (Respondent)
Representation:	Solicitors: M Young, McCartney Young Lawyers (Applicant) C Huegill, CH Law (Respondent)
File Number(s):	2018/99129
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Byron Highlander Estate Pty Ltd (“the applicant”) against the refusal by Ballina Shire Council (“the Council”) of development application 2017/557 (“the application”). The application seeks consent for the erection of a purpose-built building for use as a place of assembly (function centre and refreshment room) and for the change of use of an approved dwelling to a tourist facility (accommodation) at Lot 1 DP 204760 North Teven Road, Teven (“the site”).

2. In this matter, at or after the conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (“the Court Act”) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Court Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

5. In making the orders, I also note that the only issues in contention between the parties were merit issues. However, I confirm that:

1. the development has received the General Terms of Approval, comprising required conditions of consent, from the Rural Fire Services as required under s 4.5 of the Environmental Planning and Assessment Act 1979 and these conditions are incorporated in the attached consent;

2. the applicable preconditions to consent contained in the Ballina Local Environmental Plan 1987 have been satisfied. The uses are permissible with consent and meet the objectives for development in the zone, the tourist accommodation requirements at cl 28 are met, and the services, access, parking (and areas associated with them) meet the requirements at cll 5 and 30 for places of assembly subject to a number of agreed conditions of consent;

3. prior recent approval to a dwelling house on the site was accompanied by a Contaminated Land Assessment and the Council was satisfied that this addressed the precondition at cl 7 of State Environmental Planning Policy (SEPP) No. 55 – Remediation of Land, the assessment having found no indication of contamination on the site;

4. the site is not determined to be potential or existing koala habitat as defined by State Environmental Planning Policy (SEPP) No. 44 – Koala Habitat Protection with the location of the place of assembly comprising a macadamia plantation and the dwelling proposed to become tourist accommodation already approved by the Council having regard to this SEPP;

5. the site is in the vicinity of a quarry, the operation of which includes blasting, and the requirements of cl 13(2) of State Environmental Planning Policy (SEPP) (Mining and Extractive Industries) 2007 apply. The quarry is operated by Boral who objected to the application. A Land Use Conflict Risk Assessment Report was prepared for the recently approved dwelling on the site having regard to the SEPP and concluded that any potential conflicts between dwelling house occupants and the quarry would be acceptable and negligible. Given: the distance to the quarry from the proposed uses of some 900m; the nature of the proposed uses; the findings of the Risk Assessment for a dwelling on the site (now the proposed tourist accommodation) which adjoins the place of assembly; and, having regard to the issues (including noise, access and traffic safety) raised by both Boral and surrounding residents, I consider the requirements of the SEPP have been met;

6. as noise impact was a primary contention raised by the Council and adjoining neighbours, an Environmental Noise Assessment Report was submitted with the application addressing the requirements of the NSW Noise Policy for Industry (2017). This concluded that, subject to the imposition of the agreed conditions of consent, noise levels associated with the development would meet the requirements of that Policy.

6. The Court orders that:

1. The appeal is upheld.

2. Development Application No.2017/557 for the construction of a function centre for 100 attendees and change of use of the adjacent approved dwelling house use as tourist accommodation on the land at 290 North Teven Road Teven (known as Lot 1 DP 204760), is approved subject to the conditions of consent at Annexure "A".

………………………

Jenny Smithson

Commissioner of the Court

Annexure A (284 KB, pdf)

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Decision last updated: 14 November 2018