Marshall v Bayside Council [2020] NSWLEC 1248

Marshall v Bayside Council [2020] NSWLEC 1248

The Court held that the applicant's societal risk assessment using the SRI approach, combined with the amended Plan of Management, Emergency Management Plan, and conditions limiting population, sufficiently address the societal risk as required by the relevant planning controls. There is no requirement under the planning instruments or guidance (BBLEP, BBDCP, HIPAPs) to apply a cumulative risk assessment or QRA model to individual DAs. The proposed development's risks are tolerable and outweighed by socio-economic benefits; the population limits and risk controls are enforceable and realistic, satisfying statutory and local planning objectives.

Parties
Applicant: Shane Marshall; Respondent: Bayside Council
Jurisdiction
Australia
Judgment Date
10 June 2020
Procedural Posture
Development Appeal / Judgment on Appeal Against Deemed Refusal of Development Application
Outcome
Appeal upheld and development consent granted (subject to conditions)
Legal Topics
Development Application, Societal Risk Assessment, Plan of Management, Emergency Management Plan, Land Use Safety, Zoning, Public Interest
Planning and Environment Development Application Societal Risk Assessment Plan of Management Emergency Management Plan Land Use Safety Zoning Public Interest

Case Brief

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Parties

Shane Marshall

Applicant

Bayside Council

Respondent

Procedural Posture

Development Appeal / Judgment on Appeal Against Deemed Refusal of Development Application

Legal Issues

  1. 1 Whether the societal risk assessment for the proposed development was appropriate and sufficient
  2. 2 Whether the Plan of Management and Emergency Management Plan were adequate to manage and limit population and risks on the site
  3. 3 Whether the development is consistent with planning controls including the Botany Bay Local Environmental Plan 2013 and Botany Bay Development Control Plan 2013

Ratio Decidendi

The Court held that the applicant's societal risk assessment using the SRI approach, combined with the amended Plan of Management, Emergency Management Plan, and conditions limiting population, sufficiently address the societal risk as required by the relevant planning controls. There is no requirement under the planning instruments or guidance (BBLEP, BBDCP, HIPAPs) to apply a cumulative risk assessment or QRA model to individual DAs. The proposed development's risks are tolerable and outweighed by socio-economic benefits; the population limits and risk controls are enforceable and realistic, satisfying statutory and local planning objectives.

Court Disposition

Appeal upheld and development consent granted (subject to conditions)

Orders

  • Court grants leave to amend the DA to delete reference to strata subdivision.
  • The appeal is upheld.