Newrybar Pty Ltd v Ballina Shire Council

[2023] NSWLEC 1286

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Newrybar Pty Ltd v Ballina Shire Council [2023] NSWLEC 1286

Hearing dates:

Conciliation conference on 21 February 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 2021/137 for alterations and additions to an existing dwelling to create an attached dual occupancy development with four car parking spaces, removal of vegetation and associated works, and a right of way access over part of Lot 1 DP 776207 is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling to create an attached dual occupancy development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2000, cll 55, 55A, 121B

Environmental Planning and Assessment Regulation 2021, Sch 6 s 3

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Ballina Local Environmental Plan 1987, cll 14, 17

Category:

Principal judgment

Parties:

Newrybar Pty Ltd (Applicant)
Ballina Shire Council (Respondent)

Representation:

Counsel:
A Cornish (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Somerville Laundry Lomax (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/287841

Publication restriction:

No

Judgment

1. 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 2021/137 (the proposal) for alterations and additions to an existing dwelling to create an attached dual occupancy development with four car parking spaces, removal of vegetation and associated works, and a right of way access over part of Lot 1 DP 776207 at 10-12 Old Pacific Highway, Newrybar (the site), by Ballina Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 February 2023. 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.

3. 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.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended Plans

5. The Environmental Planning and Assessment Regulation 2000 (2000 Regulation) continues to apply to the application, because the application was lodged on 1 March 2021 and not yet determined on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to subs 3(2) of Sch 6 to the Environmental Planning and Assessment Regulation 2021, a requirement to use the NSW Planning Portal under the 2000 Regulation, cll 55(1), 55AA(2)(d) or 121B(1) does not apply if the development application is subject to proceedings in the Court.

6. The Council, as the consent authority, consented to the amendment of the application and the amended application was filed with the Court on 24 May 2024. The amended application amended the proposal the subject of the application. As a result of the amendment of the architectural plans, the parties reached agreement in principle during the conciliation conference.

Jurisdictional pre-requisites

7. The site is zoned 7(c) Environmental Protection (Water Catchment) pursuant to Ballina Local Environmental Plan 1987 (LEP 1987). Dwelling houses are a nominate permissible use in the zone and dual occupancy development is permissible pursuant to cl 14. The objectives of the zone are:

A The primary objective is to prevent development which would adversely affect the quantity or quality of the urban water supply.

B The secondary objective is to regulate the use of land within the zone—

(a) to encourage the productive use of land for agricultural purposes and to permit development which is ancillary to agricultural land uses, except for development which would conflict with the primary objective of the zone, and

(b) to ensure development of the land maintains the rural character of the locality, and

(c) to ensure development of the land does not create unreasonable and uneconomic demands, or both, for the provision or extension of public amenities or services.

8. The proposal will have a maximum height of 8.2m and will remain two storeys in height, pursuant to the requirements of cl 17 of LEP 1987.

9. The following matters must be considered for development within zone 7(c), pursuant to cl 24A:

(2) In determining an application for consent to carry out development on land to which this clause applies, the council must take into consideration the following matters—

(a) any potential adverse impact, including any incremental adverse impact, on the water quality within the catchment that may result from the development,

(b) whether adequate safeguards and other measures have been proposed to protect the water quality,

(c) whether the proposed development would be more suitably undertaken on an alternative site,

(d) any comments that have been provided in relation to the proposed development following consultation with the relevant water supply authority.

10. I am satisfied that appropriate consideration has been given to these matters and the proposal is satisfactory, based on the Council’s expert’s assessment of the amended On-site Sewage Management Sydney Design Report filed with the Court on 24 May 2023.

11. The historical usage of the site has been for residential purposes and the current proposal is suitable for the land, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

12. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 24 May 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

13. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No Development Application No 2021/137 for alterations and additions to an existing dwelling to create an attached dual occupancy development with four car parking spaces, removal of vegetation and associated works, and a right of way access over part of Lot 1 DP 776207 is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A

Amendments

02 August 2023 - Pursuant to UCPR r 36.17, the Court’s order (2), [1] and Annexure A are amended to correct Typographical errors

Decision last updated: 02 August 2023