Miltonbrook Managements Pty Limited v Shellharbour City Council [2004] NSWLEC 185

Miltonbrook Managements Pty Limited v Shellharbour City Council [2004] NSWLEC 185

The proposed development is not designated development under cl 4 of Sch 3 of the EP&A Regulation as the 0.5 hectare waterbody threshold is not met and the high water table argument is not supported on the evidence. Previous findings in Hollis estop relitigation of certain issues. The proposed development is also not an extractive industry within the meaning of cl 19 of Sch 3, as it is not 'industry' in the planning context.

Jurisdiction
Australia
Judgment Date
13 February 2004
Procedural Posture
Class 1 Proceedings (preliminary Questions of Law on Development Application) / Determination of Preliminary Points of Law
Outcome
Preliminary questions answered in the negative; proposal not designated development, nor an extractive industry.
Legal Topics
['designated Development' 'artificial Waterbodies' 'extractive Industry' 'res Judicata/estoppel' 'high Water Table Determination']
['environmental Law' 'planning Law'] ['designated Development' 'artificial Waterbodies' 'extractive Industry' 'res Judicata/estoppel' 'high Water Table Determination']

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Procedural Posture

Class 1 Proceedings (preliminary Questions of Law on Development Application) / Determination of Preliminary Points of Law

Legal Issues

  1. 1 ['Whether the proposed development is designated development under cl 4 of Sch 3 of the Environmental Planning and Assessment Regulation 2000' 'Whether issues determined in previous proceedings (Hollis) can be relitigated' 'Whether proposed development constitutes an extractive industry under Sch 3 of the Regulation']

Ratio Decidendi

The proposed development is not designated development under cl 4 of Sch 3 of the EP&A Regulation as the 0.5 hectare waterbody threshold is not met and the high water table argument is not supported on the evidence. Previous findings in Hollis estop relitigation of certain issues. The proposed development is also not an extractive industry within the meaning of cl 19 of Sch 3, as it is not 'industry' in the planning context.

Court Disposition

Preliminary questions answered in the negative; proposal not designated development, nor an extractive industry.

Orders

  • ['Exhibits 1 and 2 to remain on the Court file.']