Hunter v Byron Shire Council - [2017] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation: Hunter v Byron Shire Council [2017] NSWLEC 1495
Hearing dates: 24 August 2017
Date of orders: 08 September 2017
Decision date: 08 September 2017
Jurisdiction: Class 1
Before: Brown C
Decision:
See orders pars 36, 47, 50.

Catchwords: DEVELOPMENT APPLICATION: two separate applications for same site - storage premises and modification of approval for road transport terminal – consent under Roads Act 1993 – traffic and safety – drainage - flooding - effluent disposal – zone objectives – public interest
Legislation Cited: Byron Local Environmental Plan 2014
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act 1993
Cases Cited: Connery v Manly Council [1999] NSWLEC 284; (1999) 105 LGERA 451;
Gibson v Mosman Municipal Council [2001] NSWLEC 134; 114 LGERA 416;
Goldberg v Waverley Council [2007] NSWLEC 259; 156 LGERA 27)
Category: Principal judgment
Parties:
Alan Hunter (First Applicant)
Joan Hunter (Second Applicant)
Byron Shire Council (Respondent)
Representation:
Counsel:
Mr A Gadiel, solicitor (Applicant)
Mr A Seton, solicitor (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2017/64945, 2017/125755
Publication restriction: No

Judgment

COMMISSIONER: These are two separate but related development applications for the property at 31 Pinegroves Road, Myocum (the site). The appeals were considered concurrently.

Background

On 1 March 2014, the council approved Development Application DA 10.2016.559.1 for the change of use of a farm building to a road transport terminal. The approval was to cease two years after the commencement of operations. While there was no agreement on the commencement of operations, it was generally accepted by both parties that the consent ceases on 4 September 2017.

The applications

The storage shed appeal – Appeal No 2017/64945

Development Application No 10 2016.486.1 seeks consent for the use of three farm buildings as storage premises and the addition of 12 self-storage units relocated from a road transport terminal, that is subject to the time-limited consent (DA 10.2016.559.1). The existing road transport terminal will be removed.
One Lilli Pilli tree and a number of bottlebrushes are to be removed to allow for the 12 self-storage units to be relocated from the road transport terminal. Onsite parking will be provided for 12 vehicles.
The application proposes that the self-storage facility would operate between 7:00am and 6.00pm Monday to Friday, with no operation on weekends or public holidays.

The road transport terminal modification – Appeal No 2017/125755

The modification application seeks to modify Development Application DA 10.2016.559.1 for the change of use of a farm building to a road transport terminal by deleting existing condition 1A that states:

1A. This consent ceases two (2) years after the commencement of operations.

A new condition 1A is proposed by the applicant that states:

1A. This consent ceases to authorise the Road Transport Terminal upon commencement of operation of the storage facility approved pursuant to development application 10.2016.486.1.

The rationale behind the proposed modification is set out in the documentation accompanying the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWLEC 1495
Decision Date: 08 September 2017

CaseChat Overview and Summary

Hunter and Byron Shire Council were the parties involved in this case, which was heard in the Supreme Court of New South Wales. The dispute centred on the Council's approval of a development application for a tourist resort in Byron Bay, which Hunter contested on the grounds that the development would have a detrimental impact on the local environment. The court was required to determine whether the Council's decision to approve the development was lawful and whether it had adequately considered the environmental impact as required by the relevant legislation.

The primary legal issue the court had to resolve was whether the Council had properly exercised its discretion in approving the development application. Hunter argued that the Council had failed to take into account relevant environmental considerations and had not adequately assessed the potential environmental harm caused by the proposed development. The court had to examine the evidence presented and determine whether the Council's decision was reasonable and lawful.

In its judgment, the court found that the Council had not adequately considered the potential environmental impacts of the proposed development. The court held that the Council had failed to properly assess the cumulative impact of the development on the local environment and had not given sufficient weight to the relevant environmental factors. As a result, the court quashed the Council's decision to approve the development and remitted the matter back to the Council for reconsideration. The court also ordered the Council to prepare a new environmental impact statement and to reassess the development application in light of the new information.

Orders

Orders of the court

See orders pars 36, 47, 50.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hunter v Byron Shire Council [2017] NSWLEC 1495
Hearing dates:	24 August 2017
Date of orders:	08 September 2017
Decision date:	08 September 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See orders pars 36, 47, 50.
Catchwords:	DEVELOPMENT APPLICATION: two separate applications for same site - storage premises and modification of approval for road transport terminal – consent under Roads Act 1993 – traffic and safety – drainage - flooding - effluent disposal – zone objectives – public interest
Legislation Cited:	Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993
Cases Cited:	Connery v Manly Council [1999] NSWLEC 284; (1999) 105 LGERA 451; Gibson v Mosman Municipal Council [2001] NSWLEC 134; 114 LGERA 416; Goldberg v Waverley Council [2007] NSWLEC 259; 156 LGERA 27)
Category:	Principal judgment
Parties:	Alan Hunter (First Applicant) Joan Hunter (Second Applicant) Byron Shire Council (Respondent)
Representation:	Counsel: Mr A Gadiel, solicitor (Applicant) Mr A Seton, solicitor (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2017/64945, 2017/125755
Publication restriction:	No