Prochilo v Shoalhaven City Council [2006] NSWLEC 811

Prochilo v Shoalhaven City Council [2006] NSWLEC 811

The council's 23 m building setback line lacks sufficient planning or scientific basis as it does not appear in relevant planning instruments and is not accurately aligned with current coastal hazard evidence. The more appropriate approach is a site-specific setback using contemporary engineering knowledge, which here supports a 21.5 m setback. Accordingly, development consent should be granted to the amended application on that basis.

Parties
Applicant: Guy Prochilo; Respondent: Shoalhaven City Council
Jurisdiction
Australia
Judgment Date
06 December 2006
Procedural Posture
Appeal / Hearing and Final Judgment
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
Development Applications, Coastal Hazard Assessment, Building Setbacks
Planning Law Environmental Law Development Applications Coastal Hazard Assessment Building Setbacks

Case Brief

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Parties

Guy Prochilo

Applicant

Shoalhaven City Council

Respondent

Procedural Posture

Appeal / Hearing and Final Judgment

Legal Issues

  1. 1 Whether the council's 23 m foreshore building setback line is valid and appropriately based on planning and scientific evidence for Callala Beach.
  2. 2 Appropriate location of the building line and application of coastal hazard evidence for development approval.

Ratio Decidendi

The council's 23 m building setback line lacks sufficient planning or scientific basis as it does not appear in relevant planning instruments and is not accurately aligned with current coastal hazard evidence. The more appropriate approach is a site-specific setback using contemporary engineering knowledge, which here supports a 21.5 m setback. Accordingly, development consent should be granted to the amended application on that basis.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • The appeal is upheld.
  • Development Application 01/2294 for a new dwelling and fencing at 11 Quay Street, Callala Beach (Lot 4 Section L DP 8188) is granted consent subject to conditions, with particular attention to the final form of condition 6.