Peter Walter Carmont v. Ballina Shire Council [1998] NSWLEC 122

Peter Walter Carmont v. Ballina Shire Council [1998] NSWLEC 122

The proposed development was for erection of a building for a tourist facility, specifically a bed and breakfast establishment, with tourists occupying bedrooms 1 and 2, the owner/manager occupying bedrooms 3 and 4, and amenities shared. Construing the definitions in their planning context and accepting the applicant's further information as part of the development application, the proposed building was not constructed or adapted to be capable of occupation or use as a separate domicile. It was therefore not a dwelling house to which cl 12 applied, cl 12(3) did not prohibit the development, and the Court could hear the appeal without a State Environmental Planning Policy No 1 objection.

Jurisdiction
Australia
Judgment Date
07 August 1998
Procedural Posture
Class 1 Proceedings Concerning a Development Application / Preliminary Questions of Law; Ex Tempore Judgment
Outcome
Preliminary questions answered in favour of characterising the proposal as a tourist facility incorporating a bed and breakfast establishment; the appeal was to proceed to hearing.
Legal Topics
['characterisation of Proposed Development' 'tourist Facility' 'bed and Breakfast Establishment' 'dwelling House' 'state Environmental Planning Policy No 1 Objection' 'minimum Lot Size Development Standard']
['planning and Environment Law' 'development Consent' 'local Environmental Planning'] ['characterisation of Proposed Development' 'tourist Facility' 'bed and Breakfast Establishment' 'dwelling House' 'state Environmental Planning Policy No 1 Objection' 'minimum Lot Size Development Standard']

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Procedural Posture

Class 1 Proceedings Concerning a Development Application / Preliminary Questions of Law; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether cl 12(3) of Ballina Local Environmental Plan 1987 prohibited erection of a tourist facility consisting of a bed and breakfast establishment on the land, including where part would be occupied by the owner/manager.' 'Whether the erection of the building proposed in the development application was prohibited.' 'Whether the proposed development was a dwelling house, tourist facility or bed and breakfast establishment for the purposes of the Ballina Local Environmental Plan 1987.' 'Whether the Court was entitled to hear the appeal in the absence of an objection under State Environmental Planning Policy No 1 if the development was properly characterised as a dwelling house or bed and breakfast establishment.']

Ratio Decidendi

The proposed development was for erection of a building for a tourist facility, specifically a bed and breakfast establishment, with tourists occupying bedrooms 1 and 2, the owner/manager occupying bedrooms 3 and 4, and amenities shared. Construing the definitions in their planning context and accepting the applicant's further information as part of the development application, the proposed building was not constructed or adapted to be capable of occupation or use as a separate domicile. It was therefore not a dwelling house to which cl 12 applied, cl 12(3) did not prohibit the development, and the Court could hear the appeal without a State Environmental Planning Policy No 1 objection.

Court Disposition

Preliminary questions answered in favour of characterising the proposal as a tourist facility incorporating a bed and breakfast establishment; the appeal was to proceed to hearing.

Orders

  • ['Question 1 answered: No.' 'Question 2 answered: No.' 'Question 3 answered: The development proposed is a tourist facility which incorporates within its definition a bed and breakfast establishment for the purposes of the Ballina Local Environmental Plan 1987.' 'Question 4 answered: The proposed development is...