Millar v Ballina Shire Council Summary

Land and Environment Court

New South Wales

Medium Neutral Citation: Millar v Ballina Shire Council [2019] NSWLEC 1362
Hearing dates: Conciliation Conference on 30 July 2019
Date of orders: 01 August 2019
Decision date: 01 August 2019
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development Application No. 2018/189 for the erection of a new Colorbond shed on a new slab, detached from the house on the land, at 4 Page Court, Lennox Head (Lot 4, DP 253429) is approved, subject to the conditions of consent at Annexure A.

Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category: Principal judgment
Parties: Wayne Millar (Applicant)
Ballina Shire Council (Respondent)
Representation: Solicitors:
M Young, McCartney Young Lawyers (Applicant)
C Huegill, Parker & Kissane Lawyers (Respondent)

File Number(s): 2018/392169
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2018/189 for the erection of a new Colorbond clad shed on a new concrete slab, detached from the house on the land (the proposal), at 4 Page Court, Lennox Head (the site) by Ballina Shire Council (the Council).
The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 30 July 2019. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Orders

The orders of the Court are:

The appeal is upheld.

Development Application No. 2018/189 for the erection of a new Colorbond shed on a new slab, detached from the house on the land, at 4 Page Court, Lennox Head (Lot 4, DP 253429) is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (181 KB, pdf)

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CaseChat Overview and Summary

The matter before the Land and Environment Court was an appeal against the refusal by Ballina Shire Council of a development application concerning the erection of a new shed on a property in Lennox Head. The applicant, Mr. Millar, sought approval for the construction of a Colorbond shed, detached from the main house, on a vacant portion of his land. The Council had denied the application, prompting Mr. Millar to appeal to the Court.

The primary legal issue before the Court was whether the Council's refusal of the development application was lawful. Mr. Millar argued that the refusal was unreasonable and not in accordance with the relevant planning scheme. He contended that the proposed shed was a lawful structure that would not adversely affect the character of the area and would be of benefit to the property owner. The Council, on the other hand, argued that the development was not consistent with the local planning policies and that the proposed shed would negatively impact the visual amenity of the area.

In its decision, the Court found that the Council's refusal of the development application was not supported by the relevant planning policies and was, therefore, unreasonable. The Court noted that the proposed shed would not substantially alter the character of the area and would serve a practical purpose for the property owner. The Court also found that the Council had failed to adequately justify its decision in accordance with the statutory requirements. Consequently, the Court upheld the appeal and approved the development application, subject to specific conditions designed to mitigate any potential adverse impacts.

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. 2018/189 for the erection of a new Colorbond shed on a new slab, detached from the house on the land, at 4 Page Court, Lennox Head (Lot 4, DP 253429) is approved, subject to the conditions of consent at Annexure A.

Millar v Ballina Shire Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Millar v Ballina Shire Council [2019] NSWLEC 1362
Hearing dates:	Conciliation Conference on 30 July 2019
Date of orders:	01 August 2019
Decision date:	01 August 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application No. 2018/189 for the erection of a new Colorbond shed on a new slab, detached from the house on the land, at 4 Page Court, Lennox Head (Lot 4, DP 253429) is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Wayne Millar (Applicant) Ballina Shire Council (Respondent)
Representation:	Solicitors: M Young, McCartney Young Lawyers (Applicant) C Huegill, Parker & Kissane Lawyers (Respondent)
File Number(s):	2018/392169
Publication restriction:	No