Ballina Island Developments Pty Ltd v Ballina Shire Council [2024] NSWLEC 1223

Ballina Island Developments Pty Ltd v Ballina Shire Council [2024] NSWLEC 1223

The Land and Environment Court cannot grant s68 approval for stormwater drainage works when conditions of development consents DA 2018/51 and DA 2020/284 imposed under the EPA Act (requiring Council’s satisfaction) have not been fulfilled; Council’s satisfaction under consent conditions is not a function that may be exercised by the Court under s 39(2) of the Court Act in s68 appeals; in absence of compliance with consent conditions, the s68 applications must be refused.

Jurisdiction
Australia
Judgment Date
26 April 2024
Procedural Posture
Class 2 Appeal Under S 68(1) Local Government Act 1993 / Final Judgment
Outcome
Appeal dismissed; s68 approvals refused.
Legal Topics
['development Consent' 'stormwater Drainage Approval' 'protection of Endangered Ecological Communities' 'satisfaction of Consent Conditions' 'jurisdiction of Land and Environment Court']
['planning and Environment' 'local Government Law'] ['development Consent' 'stormwater Drainage Approval' 'protection of Endangered Ecological Communities' 'satisfaction of Consent Conditions' 'jurisdiction of Land and Environment Court']

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Procedural Posture

Class 2 Appeal Under S 68(1) Local Government Act 1993 / Final Judgment

Legal Issues

  1. 1 ["Whether the Land and Environment Court has jurisdiction to grant section 68 approval absent the Council's satisfaction of consent conditions under the EPA Act" 'Whether the stormwater drainage works proposed comply with conditions of development consents DA 2018/51 and DA 2020/284' 'Whether the s68 applications for stormwater, sewerage, and water works should be refused due to unsatisfactory mitigation measures for the Freshwater Wetland EEC' "Whether the Court's powers under s 39(2) Land and Environment Court Act 1979 extend to substituting its satisfaction for the Council's under conditions imposed by the EPA Act"]

Ratio Decidendi

The Land and Environment Court cannot grant s68 approval for stormwater drainage works when conditions of development consents DA 2018/51 and DA 2020/284 imposed under the EPA Act (requiring Council’s satisfaction) have not been fulfilled; Council’s satisfaction under consent conditions is not a function that may be exercised by the Court under s 39(2) of the Court Act in s68 appeals; in absence of compliance with consent conditions, the s68 applications must be refused.

Court Disposition

Appeal dismissed; s68 approvals refused.

Orders

  • ['Appeal dismissed in proceedings no. 2022/215110 and 2022/187078.' 'Application no. S682022/4997 for approval under s 68(1) of the Local Government Act 1993 in respect of DA 2018/51 for land at 20 North Creek Road, Lennox Head (Lot 1 in DP 517111) is refused.' 'The application email dated 18 May 2021 for approval...