Chambers v Maclean Shire Council & Ors [2002] NSWLEC 1

Chambers v Maclean Shire Council & Ors [2002] NSWLEC 1

The word 'area' in cl 4 of Schedule 1 to SEPP 62 refers to the general district or region as represented on ASS Risk Maps, not to the precise level of every part of a development site, and it was reasonably open to Council to find that the site was within such an area above 1m AHD. The Council was entitled to rely on ASS maps as a guide to elevation for the purposes of applying the minimum performance criteria and was not obliged to rely solely on detailed survey evidence. Accordingly, development consent was permissible.

Parties
Applicant: Anita Chambers; First Respondent: Maclean Shire Council; Second Respondent: Paul Smith; Third Respondent: Yumi Smith
Jurisdiction
Australia
Judgment Date
14 January 2002
Procedural Posture
Judicial Review / Preliminary Question Determined
Outcome
Development is permissible and Council's decision upheld. Proceedings adjourned for further directions. All questions of costs are reserved.
Legal Topics
Judicial Review of Development Consent, Statutory Interpretation, Aquaculture Development, Permissibility Under SEPP 62
Environmental Law Administrative Law Planning Law Judicial Review of Development Consent Statutory Interpretation Aquaculture Development Permissibility Under SEPP 62

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Parties

Anita Chambers

Applicant

Maclean Shire Council

First Respondent

Paul Smith

Second Respondent

Yumi Smith

Third Respondent

Procedural Posture

Judicial Review / Preliminary Question Determined

Legal Issues

  1. 1 Whether the Smith development conforms with the minimum performance criteria in SEPP 62, especially elevation requirements for pond-based aquaculture
  2. 2 Whether Council could rely on Acid Sulphate Soils (ASS) Risk Maps or was required to have regard to actual survey evidence of AHD elevation
  3. 3 Construction of the term 'area' in SEPP 62

Ratio Decidendi

The word 'area' in cl 4 of Schedule 1 to SEPP 62 refers to the general district or region as represented on ASS Risk Maps, not to the precise level of every part of a development site, and it was reasonably open to Council to find that the site was within such an area above 1m AHD. The Council was entitled to rely on ASS maps as a guide to elevation for the purposes of applying the minimum performance criteria and was not obliged to rely solely on detailed survey evidence. Accordingly, development consent was permissible.

Court Disposition

Development is permissible and Council's decision upheld. Proceedings adjourned for further directions. All questions of costs are reserved.

Orders

  • The court concludes the subject development is permissible and that the Council was entitled to so determine.
  • Matter adjourned for callover by the Registrar on Friday 1 February 2002, with parties to notify Second and Third Respondents of that listing.