Michael Brown Planning Strategies v Wingecarribee Shire Council [2019] NSWLEC 1311

Michael Brown Planning Strategies v Wingecarribee Shire Council [2019] NSWLEC 1311

The consent authority cannot be satisfied, at the time of determination, that the development is compatible with the flood hazard of the land, as required by cl 7.9(3)(a) of LEP 2010, because the railway culvert augmentation works do not form part of the development for which consent is sought. Deferred commencement conditions cannot substitute the requirement for compatibility at determination. Therefore, the application fails the statutory precondition and must be refused.

Jurisdiction
Australia
Judgment Date
05 July 2019
Procedural Posture
Class 1 Appeal / Post Hearing, Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'flood Hazard' 'statutory Interpretation' 'compatibility With Land Constraints' 'deferred Commencement Conditions']
['planning Law' 'environmental Law'] ['development Application' 'flood Hazard' 'statutory Interpretation' 'compatibility With Land Constraints' 'deferred Commencement Conditions']

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Procedural Posture

Class 1 Appeal / Post Hearing, Judgment

Legal Issues

  1. 1 ['Whether the proposed development is compatible with the flood hazard of the land as required by cl 7.9(3)(a) of Wingecarribee Local Environmental Plan 2010' 'Whether a deferred commencement condition for railway culvert augmentation suffices to meet statutory precondition for consent' 'Statutory interpretation of cl 7.9(3) LEP 2010 present vs future tense requirements']

Ratio Decidendi

The consent authority cannot be satisfied, at the time of determination, that the development is compatible with the flood hazard of the land, as required by cl 7.9(3)(a) of LEP 2010, because the railway culvert augmentation works do not form part of the development for which consent is sought. Deferred commencement conditions cannot substitute the requirement for compatibility at determination. Therefore, the application fails the statutory precondition and must be refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application DA-16/0445 for a three-lot subdivision and construction of a residential flat building at Lot 24 in DP 713573, Loftus Street Bowral is refused.' 'The exhibits are returned with the exception of Exhibits 1, A and C.']