T & K Berry v Wollongong Council [2008] NSWLEC 210

T & K Berry v Wollongong Council [2008] NSWLEC 210

The proposed development was an ecotourism facility within the WLEP 1990 definition, including guest accommodation and a manager's residence, and was not properly characterised as a dwelling house. Clause 14 did not apply to prohibit the manager's residence. Given the existing WLEP 1990 and strategic management plan, the previously disturbed and screened upper bench location, the absence of unacceptable environmental impacts apart from a perception of scale, and the early unexhibited status of draft WLEP 2009, there was no sufficient reason to refuse consent, subject to appropriate further information and conditions.

Jurisdiction
Australia
Judgment Date
23 July 2008
Procedural Posture
Development Application Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Appeal Against Refusal of Development Application; Judgment Before Final Determination and Orders, With Directions Required for Further Plans, Information and Draft Conditions
Outcome
No final consent or refusal order made; the Court found no sufficient reason to refuse consent subject to conditions, but required further plans, information and suitable draft conditions before determination and orders.
Legal Topics
['development Application Appeal' 'ecotourism Facility' 'characterisation of Development' 'dwelling House Prohibition' 'wollongong Local Environmental Plan 1990 Cl 14' 'illawarra Escarpment Development' 'precedent and Cumulative Impact' 'weight to Draft Environmental Planning Instrument']
['planning and Environment Law' 'development Control'] ['development Application Appeal' 'ecotourism Facility' 'characterisation of Development' 'dwelling House Prohibition' 'wollongong Local Environmental Plan 1990 Cl 14' 'illawarra Escarpment Development' 'precedent and Cumulative Impact' 'weight to Draft Environmental Planning Instrument']

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Procedural Posture

Development Application Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Appeal Against Refusal of Development Application; Judgment Before Final Determination and Orders, With Directions Required for Further Plans, Information and Draft Conditions

Legal Issues

  1. 1 ['Whether the proposed development was properly characterised as an ecotourism facility, a dwelling house, or both' "Whether cl 14 of the Wollongong Local Environmental Plan 1990 applied to prohibit the manager's residence as a dwelling house" 'Whether development on the upper bench area, including the residential component, was acceptable' 'Whether granting consent would create an unacceptable precedent' 'What weight should be given to draft WLEP 2009 and the land use review strategy before public exhibition']

Ratio Decidendi

The proposed development was an ecotourism facility within the WLEP 1990 definition, including guest accommodation and a manager's residence, and was not properly characterised as a dwelling house. Clause 14 did not apply to prohibit the manager's residence. Given the existing WLEP 1990 and strategic management plan, the previously disturbed and screened upper bench location, the absence of unacceptable environmental impacts apart from a perception of scale, and the early unexhibited status of draft WLEP 2009, there was no sufficient reason to refuse consent, subject to appropriate further information and conditions.

Court Disposition

No final consent or refusal order made; the Court found no sufficient reason to refuse consent subject to conditions, but required further plans, information and suitable draft conditions before determination and orders.

Orders

  • ['Directions are required to facilitate preparation of the required plans and information, and suitable draft conditions, before the application may be determined and orders made.' 'The exhibits may be returned other than exhibit A.']