Codlea Pty Ltd v Byron Shire Council

Reported Decision: 105 LGERA 370

New South Wales

Court of Appeal

CITATION:	CODLEA PTY LTD v BYRON SHIRE COUNCIL [1999] NSWCA 399
FILE NUMBER(S):	CA 40005/99
HEARING DATE(S):	30 September 1999
JUDGMENT DATE:	28 October 1999
PARTIES :	Codlea Pty Ltd v Byron Shire Council
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Stein JA at 3

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 10021/98
LOWER COURT JUDICIAL OFFICER:	Talbot J

COUNSEL:	P Graham QC/D P Wilson (Appellant) G K Downes QC/P C Tomasetti (Respondent)
SOLICITORS:	Bolster & Co (Appellant) Wilshire Webb (Respondent)
CATCHWORDS:	LAND AND ENVIRONMENT COURT - appeal to judge from commissioner (refusing development consent for subdivision of land) - application for leave to appeal and appeal heard concurrently, construction of clause contained in Local Environmental Plan, power of Land and Environment Court to utilise s 39(2) of the Land and Environment Court Act 1979 to give Council's agreement under the Local Environmental Plan
ACTS CITED:	Environmental Planning and Assessment Act 1979 ss 90(1)(a),79C(1)(a) Land and Environment Court Act 1979, ss 39(2),36(5),56A,57(3)(b) Land and Environment Court Rules, Pt 13 rr 14, 16 Local Government Act 1993, s 64 Water Supply Authorities Act 1987, Div 2 Pt 3, ss 25, 26, 27
CASES CITED:	Federal Commissioner of Taxation v Newton (1957) 96 CLR 577 Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 Kogarah Municipal Council v Kent (1981) 46 LGRA 334 McDougal v Warringah Shire Council (1993) 30 NSWLR 258 North Sydney Municipal Council v P D Mayoh Pty Ltd (1998) 14 NSWLR 746 Strathfield Municipal Council v Drew (1985) 1 NSWLR 338 Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724
DECISION:	Leave to appeal granted on the undertaking of the appellant to pay the filing fee; Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40005/99
LEC 10021/98
HANDLEY JA
SHELLER JA
STEIN JA

Thursday, 28 October 1999

CODLEA PTY LIMITED v BYRON SHIRE COUNCIL
The appellant lodged a development application with the respondent Council for the subdivision of land at Brunswick Heads, New South Wales, proposing that part of the sewerage generated by the Brunswick Head township be redirected from the Brunswick Head treatment plant to another plant across the Brunswick River by way of a rising main constructed at its expense. The application was refused by the respondent. It was not satisfied that prior adequate arrangements had been made for the provision of sewerage services to the proposed development in accordance with Clause 45 of the Byron Local Environmental Plan 1988 (LEP) and s 90(1)(l) of the Environmental Planning and Assessment Act 1979.

Clause 45 provides:

That Council shall not consent to the carrying out of development on any land to which this plan provides unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land.


The appellant appealed to a Commissioner of the…