Coombs v Ballina Shire Council [2006] NSWLEC 294

Coombs v Ballina Shire Council [2006] NSWLEC 294

The applicant failed to discharge the onus of showing that a dwelling house existed on the land immediately before 27 February 1987. In the absence of evidence as to when the house was removed, clause 12(3A) does not apply and the application cannot succeed.

Jurisdiction
Australia
Judgment Date
31 May 2006
Procedural Posture
Development Application Appeal / Preliminary/separate Questions on Entitlement to Dwelling Approval
Outcome
application dismissed; questions answered in the negative; no order as to costs
Legal Topics
['development Applications' 'dwelling Entitlement' 'minimum Allotment Size' 'existing Use Rights']
['planning and Environment Law'] ['development Applications' 'dwelling Entitlement' 'minimum Allotment Size' 'existing Use Rights']

Case Brief

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Procedural Posture

Development Application Appeal / Preliminary/separate Questions on Entitlement to Dwelling Approval

Legal Issues

  1. 1 ['Whether the subject land is entitled to existing use rights pursuant to s 108 of the Environmental Planning and Assessment Act 1979' 'Whether the subject land is entitled to the benefit of clause 12(3A) of the Ballina Local Environmental Plan 1987 for the purposes of a dwelling house']

Ratio Decidendi

The applicant failed to discharge the onus of showing that a dwelling house existed on the land immediately before 27 February 1987. In the absence of evidence as to when the house was removed, clause 12(3A) does not apply and the application cannot succeed.

Court Disposition

application dismissed; questions answered in the negative; no order as to costs

Orders

  • ['No order as to costs' 'Exhibits may be returned']