EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63

EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63

Although the Commissioner's first conclusion at [34] was based on an incorrect approach and was disregarded, the Commissioner separately found at [38], applying the Schaffer approach, that the proposed development was inconsistent with the objectives of the 1(e) Extractive Resources Zone because it provided no association with the essential feature of that zone, being extractive industry. That was a factual finding open on the evidence and disclosed no error of law. The exhaustion of the quarry resource did not make the zone objectives irrelevant, and the cl 9(3) threshold was not satisfied. The appeal therefore failed, making grounds 2 to 5 unnecessary to determine.

Jurisdiction
Australia
Judgment Date
31 May 2016
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 Against a Commissioner's Decision / Appeal on Questions of Law From Dismissal of a Development Application Appeal; Principal Judgment
Outcome
Appeal dismissed.
Legal Topics
['development Consent' 'community Title Residential Subdivision' 'zone Objectives' '1(e) Extractive Resources Zone' 'consistency Test' 'questions of Law' "commissioner's Findings of Fact"]
['planning and Environment Law' 'land Use and Zoning' 'administrative Law Appeals'] ['development Consent' 'community Title Residential Subdivision' 'zone Objectives' '1(e) Extractive Resources Zone' 'consistency Test' 'questions of Law' "commissioner's Findings of Fact"]

Case Brief

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Procedural Posture

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 Against a Commissioner's Decision / Appeal on Questions of Law From Dismissal of a Development Application Appeal; Principal Judgment

Legal Issues

  1. 1 ['Whether the Commissioner erred in applying the test of consistency with the objectives of the 1(e) Extractive Resources Zone under cl 9(3) of the Byron Local Environmental Plan 1988.' 'Whether a finding that the proposal had a neutral relationship with the zone objectives satisfied cl 9(3).' 'Whether the Commissioner erred by requiring an association between the proposed residential development and the essential feature of the zone, being extractive industry.' 'Whether the exhaustion of the quarry resource made the 1(e) zone objectives irrelevant to cl 9(3).' 'Whether it was necessary to determine appeal grounds 2 to 5 after the cl 9(3) conclusion disposed of the appeal.']

Ratio Decidendi

Although the Commissioner's first conclusion at [34] was based on an incorrect approach and was disregarded, the Commissioner separately found at [38], applying the Schaffer approach, that the proposed development was inconsistent with the objectives of the 1(e) Extractive Resources Zone because it provided no association with the essential feature of that zone, being extractive industry. That was a factual finding open on the evidence and disclosed no error of law. The exhaustion of the quarry resource did not make the zone objectives irrelevant, and the cl 9(3) threshold was not satisfied. The appeal therefore failed, making grounds 2 to 5 unnecessary to determine.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The Appellant is to pay the Respondent's costs of this appeal."]