Michael Bald and Associates v Byron Council - [1999] NSWLEC 78

Land and Environment Court

of New South Wales

CITATION:

Michael Bald & Associates -v- Byron Council [1999] NSWLEC 78

PARTIES

APPLICANT:
Michael Bald & Associates

RESPONDENT:
Byron Council

NUMBER:

10597 of 1998

CORAM:

Lloyd J

KEY ISSUES:

:- whether the Court on an appeal under the Environmental Planning & Assessment Act can exercise power under alternative legislation.

LEGISLATION CITED:

whether the Court on an appeal under the Environmental Planning & Assessment Act can exercise power under alternative legislation.

DATES OF HEARING:

03/26/1999

DATE OF JUDGMENT DELIVERY:

04/08/1999

LEGAL REPRESENTATIVES:

APPLICANT:
J J Webster
Solicitors:
Harris Fiford Crane
RESPONDENT:
P C Tomasetti
Solicitors: Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No: 10597/98
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date:08/04/99

MICHAEL BALD & ASSOCIATES
Applicant

v

BYRON SHIRE COUNCIL
Respondent
JUDGMENT

HIS HONOUR:

1. This is the determination of questions of law pursuant to the Land & Environment Court Act 1979, s 36(5), which arose in proceedings being heard by a Commissioner. The Commissioner was hearing an appeal under the Environmental Planning & Assessment Act 1979, s 97, against the refusal of a development application for the erection of a mixed commercial and residential building to contain four residential units, nine shops and associated car parking.

2. The relevant facts which give rise to the questions of law, as found by the Commissioner, are as follows:

1. The application seeks the erection of two-storey mixed commercial/residential development with basement carparking.
2. Clause 45 of Byron Local Environmental Plan 1988 (LEP 1988) states:-

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

3. The site discharges to the West Byron Sewerage Treatment Plant where the current loads significantly exceed its design capacity, particularly in peak times.

4. The existing residential flat building on the site has an existing loading of 3.8 ET (Equivalent Tenements).

5. The applicant calculates the proposal as having a loading of 6.254 ET while the respondent calculates the loading of 6.73ET. I find the difference to be of no significance and either calculation may be accepted as a fact.

6. The applicant contends that a 90% reduction on hydraulic load can be achieved through using water efficient appliances and practices. I find that while a 90% reduction may not be achieved, a sufficient saving can be made to reduce the load to an acceptable level.

7. I accept the applicant’s case that the pre-treatment process proposed will reduce the biological load of the sewage, prior to disposal into the sewage system.

8. I accept the applicant’s case that the pre-treatment process does not need to be accredited by the Director-General of the Department of Health by way of sub-clause 2(c) of cl 95B of the Local Government (Approvals) Amendment (Sewage Management) Regulation 1998 .

9. I accept the applicant’s case that…

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: [1999] NSWLEC 78
Decision Date: 08/04/99

CaseChat Overview and Summary

In the case of Michael Bald & Associates v Byron Council, the Land and Environment Court of New South Wales addressed a dispute concerning the refusal of a development application for a mixed commercial and residential building. The applicant, Michael Bald & Associates, sought to erect a two-storey building containing four residential units, nine shops, and associated car parking, subject to the Byron Local Environmental Plan 1988 (LEP 1988). The central issue was whether the Byron Shire Council's refusal to consent to the development was justified under clause 45 of LEP 1988, which mandates that adequate arrangements must be made for the provision of sewerage, drainage, and water services to the land before any development consent can be granted.

The court had to determine three key legal questions: whether clause 45 of LEP 1988 applied, whether the adequacy and capacity of the West Byron Sewerage Treatment Plant were relevant to clause 45, and whether the court had the power to grant consent to the development application in the absence of prior adequate arrangements for sewerage services. The court found that clause 45 applied, as the site discharged to the West Byron Sewerage Treatment Plant, which was over capacity, particularly during peak times. However, the applicant's proposed pre-treatment process, which aimed to reduce the biological load of sewage, did not eliminate the necessity for prior adequate arrangements as required by clause 45.

The court held that the adequacy of the sewerage service depended not only on the provision of a sewerage pipe but also on the capacity of the treatment plant and other components. Since the treatment plant's capacity was inadequate, the applicant had not made prior adequate arrangements. Furthermore, the court ruled that the power to grant consent under the Environmental Planning & Assessment Act did not extend to approving the pre-treatment process under the Local Government Act. This conclusion was based on the decisions in Strathfield Municipal Council v Drew and McDougall v Warringah Shire Council, which established that the court could not exercise a power under different legislation during an appeal under the Environmental Planning & Assessment Act.

Ultimately, the court answered the specific questions of law as follows: clause 45 of LEP 1988 did apply, the adequacy and capacity of the treatment plant were relevant, but the court did not have the power to grant consent to the development application in the absence of prior adequate arrangements for sewerage services. Consequently, the appeal was dismissed.

Orders