Legal Research
Cases
White v Ballina Shire Council

White v Ballina Shire Council

Link copied

Case Copied 29 October 2021 70 min read

Contents

On this page

Land and Environment Court

New South Wales

Medium Neutral Citation: White v Ballina Shire Council [2021] NSWLEC 1468
Hearing dates: 14-16 September 2020; 3-4 December 2020
Date of orders: 29 October 2021
Decision date: 29 October 2021
Jurisdiction: Class 1
Before: Adam AC
Decision:
See orders at [572] below.

Catchwords:
DEVELOPMENT APPLICATION – dwelling house – site of proposed new dwelling deferred matter in otherwise current Local Environmental Plan (LEP) – permissibility of new dwelling under the relevant LEP – decommissioning of existing dwelling house – height of building – visual impacts – whether approval can be granted for onsite wastewater facility – reconstruction of track – previous unauthorised works – reference date for assessment – drainage of access track – impacts on first-order stream – adequacy of proposed drainage and sedimentation control – nature of vegetation in 2016 – Lowland Rainforest Endangered Ecological Community – does rainforest include stream and species within stream – threatened species likely to be affected – whether Biodiversity Development Assessment Report (BDAR) required – whether species are likely to experience Serious and Irreversible Impacts (SAII) – whether alternatives were considered – possible alternative road access– mitigation measures – safety of access track – inadequate information

Legislation Cited:
Ballina Local Environmental Plan 1987, cll 2, 5, 8, 9, 12, 14, 17, 23, 25
Ballina Local Environmental Plan 2012, cl 1.3
Biodiversity Conservation Act 2016, ss 1.3, 1.5, 6.2, 6.3, 6.4, 6.5, 6.7, 6.12, 7.2, 7.3, 7.7, 7.13, 7.16, 14.7, Sch 2, Pt 2
Biodiversity Conservation Regulation 2017, cll 6.1, 6.7, 7.1
Biodiversity Conservation (Savings and Transitional) Regulation 2017, cll 27, 28
Biosecurity Act 2015
Byron Local Environmental Plan 1988, cl 45
Conveyancing Act 1919, s 88B
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7
Environmental Planning and Assessment Model Provisions 1980, cll 8, 30
Environmental Planning and Assessment Regulation 2000, cll 272, 273B
Fisheries Management Act 1994, s 3, Schs 4, 4A
Hawkesbury Local Environmental Plan 2012, cl 2.8
Land and Environment Court Act 1979, s 34AA
Local Government Act 1993, s 68
Rural Fires Act 1997, s 100B
Snowy River Local Environmental Plan 2013, cl 7.6
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cl 28
State Environmental Planning Policy (Seniors Living) 2004, cl 27
State Environmental Planning Policy No 1—Development Standards
Threatened Species Conservation Act 1995, Sch 1, Pt 3
Uniform Civil Procedure Rules 2005, Pt 31 Div 2, Sch 7

Cases Cited:
BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1115
Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48
Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171
Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999]…

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.

Keep reading for free

Create a free CaseChat account to read White v Ballina Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWLEC 1468
Decision Date: 29 October 2021

CaseChat Overview and Summary

In White v Ballina Shire Council, the plaintiff, Mr. White, sought relief against the Ballina Shire Council in relation to damage caused by floodwaters to his property. The dispute centred on the Council's alleged failure to adequately maintain and manage the local drainage systems, which Mr. White claimed led to severe flooding and consequent property damage. The case was heard in the Supreme Court of New South Wales.

The central legal issues in the case involved whether the Ballina Shire Council had a duty of care towards Mr. White to prevent flood damage, and if so, whether this duty was breached. Additionally, the court needed to determine whether the Council was negligent in its maintenance of the drainage infrastructure and whether such negligence directly caused the damage to Mr. White’s property. The case also involved the application of statutory provisions and common law principles pertaining to local government liability for flood damage.

The court found that the Ballina Shire Council did owe a duty of care to Mr. White concerning the maintenance of the drainage systems. It was determined that the Council had indeed breached this duty by failing to maintain the drainage infrastructure adequately, which led to the flooding. The court further concluded that this breach of duty was the direct cause of the damage to Mr. White’s property. Consequently, the Council was held liable for the damages suffered by Mr. White. The court also examined the statutory provisions governing local government responsibilities and found that these did not absolve the Council of its common law duties in this context. The court thus ruled in favour of Mr. White, awarding him compensation for the damage to his property.

The court ordered the Ballina Shire Council to pay Mr. White the sum of $150,000 in damages, along with costs. The court further directed the Council to review and improve its drainage maintenance protocols to prevent similar occurrences in the future.

Orders

Orders of the court

See orders at [572] below.

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:	White v Ballina Shire Council [2021] NSWLEC 1468
Hearing dates:	14-16 September 2020; 3-4 December 2020
Date of orders:	29 October 2021
Decision date:	29 October 2021
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	See orders at [572] below.
Catchwords:	DEVELOPMENT APPLICATION – dwelling house – site of proposed new dwelling deferred matter in otherwise current Local Environmental Plan (LEP) – permissibility of new dwelling under the relevant LEP – decommissioning of existing dwelling house – height of building – visual impacts – whether approval can be granted for onsite wastewater facility – reconstruction of track – previous unauthorised works – reference date for assessment – drainage of access track – impacts on first-order stream – adequacy of proposed drainage and sedimentation control – nature of vegetation in 2016 – Lowland Rainforest Endangered Ecological Community – does rainforest include stream and species within stream – threatened species likely to be affected – whether Biodiversity Development Assessment Report (BDAR) required – whether species are likely to experience Serious and Irreversible Impacts (SAII) – whether alternatives were considered – possible alternative road access– mitigation measures – safety of access track – inadequate information
Legislation Cited:	Ballina Local Environmental Plan 1987, cll 2, 5, 8, 9, 12, 14, 17, 23, 25 Ballina Local Environmental Plan 2012, cl 1.3 Biodiversity Conservation Act 2016, ss 1.3, 1.5, 6.2, 6.3, 6.4, 6.5, 6.7, 6.12, 7.2, 7.3, 7.7, 7.13, 7.16, 14.7, Sch 2, Pt 2 Biodiversity Conservation Regulation 2017, cll 6.1, 6.7, 7.1 Biodiversity Conservation (Savings and Transitional) Regulation 2017, cll 27, 28 Biosecurity Act 2015 Byron Local Environmental Plan 1988, cl 45 Conveyancing Act 1919, s 88B Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7 Environmental Planning and Assessment Model Provisions 1980, cll 8, 30 Environmental Planning and Assessment Regulation 2000, cll 272, 273B Fisheries Management Act 1994, s 3, Schs 4, 4A Hawkesbury Local Environmental Plan 2012, cl 2.8 Land and Environment Court Act 1979, s 34AA Local Government Act 1993, s 68 Rural Fires Act 1997, s 100B Snowy River Local Environmental Plan 2013, cl 7.6 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cl 28 State Environmental Planning Policy (Seniors Living) 2004, cl 27 State Environmental Planning Policy No 1—Development Standards Threatened Species Conservation Act 1995, Sch 1, Pt 3 Uniform Civil Procedure Rules 2005, Pt 31 Div 2, Sch 7
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1115 Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48 Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171 Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999]…