Michael Pollard v Blue Mountains Council [2017] NSWLEC 1597

Michael Pollard v Blue Mountains Council [2017] NSWLEC 1597

The appeal was dismissed and the development application refused because the applicant's investigation and assessment were inadequate to enable proper consideration of the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at or near the site. The Court accepted the Council's expert evidence that the Aboriginal Due Diligence Assessment contained significant gaps and that it was not possible to determine whether the proposal had potential to impact Aboriginal heritage. The applicant's assertions of site disturbance and intention to manage his own due diligence risk did not satisfy the requirements...

Jurisdiction
Australia
Judgment Date
25 October 2017
Procedural Posture
Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. X/241/2016 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated When Agreement Was Not Reached; Hearing Held Forthwith; Principal Judgment
Outcome
Appeal dismissed; Development Application No. X/241/2016 refused.
Legal Topics
['development Application Refusal' 'aboriginal Heritage' 'aboriginal Objects' 'due Diligence Assessment' 'blue Mountains Local Environmental Plan 2015' 'blue Mountains Development Control Plan 2015']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['development Application Refusal' 'aboriginal Heritage' 'aboriginal Objects' 'due Diligence Assessment' 'blue Mountains Local Environmental Plan 2015' 'blue Mountains Development Control Plan 2015']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. X/241/2016 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated When Agreement Was Not Reached; Hearing Held Forthwith; Principal Judgment

Legal Issues

  1. 1 ['Whether the development application adequately demonstrated that the proposed development would not have an unacceptable impact on Aboriginal heritage.' 'Whether the Aboriginal Due Diligence Assessment was adequate to allow consideration of the effect of the proposed development on any Aboriginal object known or reasonably likely to be located at the place.' "Whether the applicant's asserted site disturbance and proposed personal due diligence process were sufficient to meet the applicable assessment requirements."]

Ratio Decidendi

The appeal was dismissed and the development application refused because the applicant's investigation and assessment were inadequate to enable proper consideration of the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at or near the site. The Court accepted the Council's expert evidence that the Aboriginal Due Diligence Assessment contained significant gaps and that it was not possible to determine whether the proposal had potential to impact Aboriginal heritage. The applicant's assertions of site disturbance and intention to manage his own due diligence risk did not satisfy the requirements...

Court Disposition

Appeal dismissed; Development Application No. X/241/2016 refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. X/241/2016 for the construction of a two-storey dwelling and onsite sewage management system at 3 Binstead Street, Faulconbridge, is refused.' 'The exhibits, other than exhibits 1 and A, are returned.']