East Coast Planning Consultants v Byron Shire Council

[2006] NSWLEC 311

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    East Coast Planning Consultants v Byron Shire Council [2006]  NSWLEC 311

PARTIES:
Applicant:
East coast Planning Condultants Pty Ltd

Respondent:
Byron Shire Council

CASE NUMBER:      10535  of       2005

CATCH WORDS:      Development Application

LEGISLATION CITED:

CORAM:       Roseth SC

DATES OF HEARING:       30/05/2006

EX TEMPORE DATE:         30/05/2006

LEGAL REPRESENTATIVES

Applicant:
Mr Lonergan, planning consultant as agent
Respondent:
Mr G Reilly, solicitor of Abbott Tout Lawyers

JUDGMENT:

- 3 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

30 May 2006

10535 of 2005     East Coast Planning Consultants Pty Ltd v Byron Shire Council

JUDGMENT

1. Senior Commissioner:  This is an appeal against the refusal by Byron Shire Council (the council) of a development application for the construction of one additional tourist cabin, the installation of a new on-site sewerage management system and associated works including the demolition of farm structures, earth works, construction of on-site effluent irrigation area and pipelines, landscaping and construction of a new driveway on lot 3 DP628914, Coopers Shoot Road, Coopers Shoot. 

2. The site now contains three tourist cabins granted consent in August 1995. The applicant lodged the original development application for three additional tourist cabins in October 2003. The council refused it in February 2004. The applicant requested a review under s82A of the Environmental Planning and Assessment Act 1979 in March 2004, this time for one cabin only.  The council re-confirmed its refusal in June 2004.  The applicant lodged the appeal in June 2005. 

3. The parties have now reached agreement and seek consent orders from the Court.  The two major issues that kept them apart until now were, first, the fact that the site is only 4 ha, whereas the Byron Shire Local Environmental Plan 1988 requires a minimum of 20 ha, and, second, the council’s concerns that the on-site sewerage management was inadequate. 

4. On the first issue, the applicant tendered an Objection under State Environmental Planning Policy 1 to the minimum area requirement of 20ha.  Basically, the reason why the council accepts that the application of the development standard is not necessary in this case is that the new tourist cabin is built in place of an existing farm shed, and the applicant has accepted the responsibility for revegetating parts of the property as a measure compensating for the smaller allotment size. 

5. On the second issue, the applicant has supplied further details of the method proposed for the on-site disposal of effluent, and these details have satisfied the council 

6. There are no objectors to the proposal and there are no nearby residences.  In the circumstances I agree to the parties’ request for consent orders. 

Orders

1. The appeal is upheld by consent. 

1. Development application for the construction of one additional tourist cabin, the installation of a new on-site sewerage management system and associated works including demolition of farm structures, earth works, construction of on-site effluent irrigation area and pipelines, landscaping and construction of a new driveway on lot 3 DP628914, Coopers Shoot Road, Coopers Shoot is determined by the grant of consent subject to the conditions in Annexure A. 

1. The exhibits are returned, except Exhibits 3 and 4. 

   ___________________
   Dr John Roseth

Senior Commissioner