Fabcot Pty Limited v Byron Shire Council [2010] NSWLEC 1013

Fabcot Pty Limited v Byron Shire Council [2010] NSWLEC 1013

The amended OSMS merited conditional approval because the expert evidence and revised design showed that pump out requirements, effluent quality, groundwater impacts, irrigation, hazard controls and management arrangements would meet relevant objectives and operate within acceptable public health and environmental limits, and any remaining risk could be addressed by stringent conditions and a five-year approval term pending possible sewer connection.

Jurisdiction
Australia
Judgment Date
27 January 2010
Procedural Posture
Appeal Against Byron Shire Council's Refusal of an Application Under Section 68 of the Local Government Act 1993 for Installation and Operation of an on Site Sewer Management System / Final Judgment After Hearing; Conditional Approvals Granted
Outcome
Appeal upheld; Section 68 approvals granted to install and operate the OSMS subject to conditions.
Legal Topics
['section 68 Approval' 'on Site Sewage Management System' 'wastewater Irrigation and Reuse' 'groundwater Impacts' 'pump Out Risk' 'deferred Commencement Condition' 'future Sewer Connection']
['local Government' 'environmental Planning and Assessment' 'environmental Law'] ['section 68 Approval' 'on Site Sewage Management System' 'wastewater Irrigation and Reuse' 'groundwater Impacts' 'pump Out Risk' 'deferred Commencement Condition' 'future Sewer Connection']

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Procedural Posture

Appeal Against Byron Shire Council's Refusal of an Application Under Section 68 of the Local Government Act 1993 for Installation and Operation of an on Site Sewer Management System / Final Judgment After Hearing; Conditional Approvals Granted

Legal Issues

  1. 1 ['Whether the amended on site sewer management system for the approved supermarket and liquor store should receive Section 68 approval to install and operate' 'Whether limited pump out requirements were inconsistent with applicable policy or warranted refusal' 'Whether effluent quality, groundwater impacts, site suitability and hazard risks were acceptable subject to conditions' 'Whether the approval should be limited in duration pending possible future connection to reticulated sewer']

Ratio Decidendi

The amended OSMS merited conditional approval because the expert evidence and revised design showed that pump out requirements, effluent quality, groundwater impacts, irrigation, hazard controls and management arrangements would meet relevant objectives and operate within acceptable public health and environmental limits, and any remaining risk could be addressed by stringent conditions and a five-year approval term pending possible sewer connection.

Court Disposition

Appeal upheld; Section 68 approvals granted to install and operate the OSMS subject to conditions.

Orders

  • ['The appeal is upheld.' 'A Section 68 approval is granted to install an on-site sewerage management system (OSMS) at Lot 1 DP 112508 Station Street, Mullumbimby subject to the conditions in Annexure A.' 'A Section 68 approval is granted to operate an on-site sewerage management system (OSMS) at Lot 1 DP 112508...