Ardill Payne & Partners v Byron Shire Council [2019] NSWLEC 1125

Ardill Payne & Partners v Byron Shire Council [2019] NSWLEC 1125

Although the proposed holiday cabins were properly characterised as permissible tourist and visitor accommodation, the development application was refused because the dual occupancy component was inconsistent with RU2 zone objectives, scenic amenity and rural character requirements and DCP provisions, including the objective of minimising the footprint of dual occupancy development. The tourist accommodation component was also inconsistent with the objective of enabling small-scale rural tourism uses associated with primary production and environmental conservation, and approval would create an undesirable precedent. Because the proposed dual occupancy dwellings were more than 100 metres...

Jurisdiction
Australia
Judgment Date
19 March 2019
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Hearing and Determination
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['development Application' 'dual Occupancy' 'tourist and Visitor Accommodation' 'rural Landscape Zone Objectives' 'development Control Plan' 'development Standard Variation Under Cl 4.6' 'precedent and Public Interest']
['environmental Planning and Assessment' 'land Use and Development Control'] ['development Application' 'dual Occupancy' 'tourist and Visitor Accommodation' 'rural Landscape Zone Objectives' 'development Control Plan' 'development Standard Variation Under Cl 4.6' 'precedent and Public Interest']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the proposed holiday cabins were properly characterised as permissible tourist and visitor accommodation or as prohibited hotel or motel accommodation or serviced apartments under Byron Local Environmental Plan 2014.' 'Whether the proposed dual occupancy and tourist accommodation were acceptable on the merits having regard to zone objectives, scenic amenity, rural character, the Byron Development Control Plan 2014 and other planning policies.' 'Whether the Byron Rural Settlement Strategy 1998 remained relevant through the Byron Development Control Plan 2014 despite the Byron Rural Land Use Strategy 2017.' 'Whether non-compliance with the requirement in cl 4.2D(2)(c) of Byron Local Environmental Plan 2014 that dual occupancy dwellings be situated within 100 metres of each other could be justified under cl 4.6.' 'Whether approval would create an undesirable precedent or be contrary to the public interest.']

Ratio Decidendi

Although the proposed holiday cabins were properly characterised as permissible tourist and visitor accommodation, the development application was refused because the dual occupancy component was inconsistent with RU2 zone objectives, scenic amenity and rural character requirements and DCP provisions, including the objective of minimising the footprint of dual occupancy development. The tourist accommodation component was also inconsistent with the objective of enabling small-scale rural tourism uses associated with primary production and environmental conservation, and approval would create an undesirable precedent. Because the proposed dual occupancy dwellings were more than 100 metres...

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development consent to DA 10.2017.602.1 is refused.' 'The exhibits are returned except Exhibit 4.']