Trewern v Transitional Coastal Panel [2018] NSWLEC 1682

Trewern v Transitional Coastal Panel [2018] NSWLEC 1682

With the imposition of agreed conditions, the proposed development achieves the legislative objectives: it does not unreasonably limit public access, is consistent with coastal and environmental protection policies, and provides for secured ongoing maintenance and restoration. The application satisfies all statutory and zoning requirements. The consent authority (here, the Court) is entitled and required to dispose of proceedings in accordance with the parties' agreement per s 34(3) LEC Act.

Parties
Applicant: Bethwyn Trewern; Respondent: Transitional Coastal Panel
Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Class 1 Appeal—development Application (repair and Maintenance of Existing Seawall) / Final Orders Following Conciliation Conference Under S 34 of LEC Act
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
Development Consent, Coastal Protection Works, Environmental Planning Instruments, Public Access to Coastal Foreshore
Environmental Law Planning and Development Law Development Consent Coastal Protection Works Environmental Planning Instruments Public Access to Coastal Foreshore

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Parties

Bethwyn Trewern

Applicant

Transitional Coastal Panel

Respondent

Procedural Posture

Class 1 Appeal—development Application (repair and Maintenance of Existing Seawall) / Final Orders Following Conciliation Conference Under S 34 of LEC Act

Legal Issues

  1. 1 Whether the proposed repairs to the seawall are permissible and satisfy legislative requirements for development consent under relevant statutes and planning instruments
  2. 2 Whether jurisdictional prerequisites under the Coastal Protection Act 1979, State Environmental Planning Policy No 71—Coastal Protection, and Byron Local Environmental Plan 1988 are satisfied, including maintenance of public access, coastal hazard minimisation, and maintenance/funding arrangements
  3. 3 Whether the conditions of consent adequately address environmental protection, public access, and ongoing maintenance

Ratio Decidendi

With the imposition of agreed conditions, the proposed development achieves the legislative objectives: it does not unreasonably limit public access, is consistent with coastal and environmental protection policies, and provides for secured ongoing maintenance and restoration. The application satisfies all statutory and zoning requirements. The consent authority (here, the Court) is entitled and required to dispose of proceedings in accordance with the parties' agreement per s 34(3) LEC Act.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • The appeal is upheld.
  • Development Application number CP 17-010 to undertake repairs to the existing seawall located within the Council Road Reserve immediately seaward of Lot 2 DP 862599, 40 Childe Street, Byron Bay is approved, subject to the conditions found in Annexure A.