S J Connelly CPP Pty Limited v Byron Bay Council [2010] NSWLEC 1182

S J Connelly CPP Pty Limited v Byron Bay Council [2010] NSWLEC 1182

The Commissioner determined that the concept plan (CP) and Stage 1 subdivision plan do not currently meet all requisite planning controls, specifically in relation to development along the southern boundary (ridgeline and shelter belt) and the layout of the CP. Clause 31 BLEP, although not raised in the respondent's statement of facts and contentions, is a relevant matter for consideration under s 79C EP&A Act. However, parties must be afforded procedural fairness to address this clause if it is to be relied on. As the CP is unsatisfactory on these points, and the Stage 1 application follows the unresolved CP, consent cannot yet be granted; parties are given the opportunity to amend...

Jurisdiction
Australia
Judgment Date
16 July 2010
Procedural Posture
Development Application Appeal / Interlocutory Judgment on Evidence and Submissions, Not Yet Final Orders
Outcome
No final orders; further submissions invited on cl 31 BLEP. Application not granted at this stage.
Legal Topics
['staged Development Applications' 'subdivision' 'concept/master Plan Approval' 'environmental Planning Instruments' 'development Control Plans' 'flooding' 'ecology and Vegetation Management' 'ridgeline Development' 'sewerage Arrangements']
['planning and Environment Law'] ['staged Development Applications' 'subdivision' 'concept/master Plan Approval' 'environmental Planning Instruments' 'development Control Plans' 'flooding' 'ecology and Vegetation Management' 'ridgeline Development' 'sewerage Arrangements']

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Procedural Posture

Development Application Appeal / Interlocutory Judgment on Evidence and Submissions, Not Yet Final Orders

Legal Issues

  1. 1 ['Whether the staged development application meets requirements under planning controls including Byron LEP 1988, SEPP 71 - Coastal Protection, and relevant DCPs.' 'Adequacy of sewerage provision arrangements under cl 45 BLEP.' 'Adequacy and detail of the concept/master plan for the subdivision.' 'Compliance with ridgeline development controls and shelter belt requirements, especially relative to DCP 11 and BLEP cl 31.' 'Sufficiency of flood risk mitigation measures and drainage strategy.' 'Impact on ecology, threatened species, and conservation measures.' 'Public interest and adequacy of open space provisioning.']

Ratio Decidendi

The Commissioner determined that the concept plan (CP) and Stage 1 subdivision plan do not currently meet all requisite planning controls, specifically in relation to development along the southern boundary (ridgeline and shelter belt) and the layout of the CP. Clause 31 BLEP, although not raised in the respondent's statement of facts and contentions, is a relevant matter for consideration under s 79C EP&A Act. However, parties must be afforded procedural fairness to address this clause if it is to be relied on. As the CP is unsatisfactory on these points, and the Stage 1 application follows the unresolved CP, consent cannot yet be granted; parties are given the opportunity to amend...

Court Disposition

No final orders; further submissions invited on cl 31 BLEP. Application not granted at this stage.

Orders

  • ['Matter stood over for mention on 30/7/10 at 9.30am for the parties to inform the Court on expeditious resolution.' 'Parties have liberty to apply on 24 hours notice.' 'Parties have 7 days to inform the Court whether they wish to lodge a Notice of Motion to amend the SoFC in respect of clause 31 BLEP.']