Newrybar Pty Ltd v Ballina Shire Council [2023] NSWLEC 1286

Newrybar Pty Ltd v Ballina Shire Council [2023] NSWLEC 1286

The Court was satisfied that the amended proposal met the relevant jurisdictional preconditions, including permissibility in zone 7(c), compliance with the maximum height requirement, appropriate consideration of water catchment impacts and safeguards, and suitability of the land having regard to historical residential use. On that basis, the parties' agreement to grant development consent was a decision the Court could have made in the proper exercise of its functions, so the appeal was upheld and consent granted subject to conditions.

Jurisdiction
Australia
Judgment Date
09 June 2023
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Orders Made Following a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; development application determined by grant of consent subject to conditions.
Legal Topics
['development Application' 'dual Occupancy Development' 'conciliation Conference' 'consent Orders' 'jurisdictional Preconditions' 'environmental Protection Water Catchment Zoning']
['planning and Environment Law'] ['development Application' 'dual Occupancy Development' 'conciliation Conference' 'consent Orders' 'jurisdictional Preconditions' 'environmental Protection Water Catchment Zoning']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Orders Made Following a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to grant consent to Development Application No 2021/137 was a decision the Court could have made in the proper exercise of its functions." 'Whether jurisdictional preconditions to the grant of development consent were satisfied, including permissibility, maximum height, water catchment considerations and suitability of the land.']

Ratio Decidendi

The Court was satisfied that the amended proposal met the relevant jurisdictional preconditions, including permissibility in zone 7(c), compliance with the maximum height requirement, appropriate consideration of water catchment impacts and safeguards, and suitability of the land having regard to historical residential use. On that basis, the parties' agreement to grant development consent was a decision the Court could have made in the proper exercise of its functions, so the appeal was upheld and consent granted subject to conditions.

Court Disposition

Appeal upheld; development application determined by grant of consent subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No 2021/137 for alterations and additions to an existing dwelling to create an attached dual occupancy development with four car parking spaces, removal of vegetation and associated works, and a right of way access over part of Lot 1 DP 776207 is determined by the...