Planners North v Ballina Shire Council [2021] NSWLEC 120

Land and Environment Court New South Wales

Medium Neutral Citation: Planners North v Ballina Shire Council [2021] NSWLEC 120 Hearing dates: 2, 3, 4, 5, 6 and 13 August 2021 Date of orders: 03 November 2021 Decision date: 03 November 2021 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The appeal is dismissed. (2) Development application 2020/192, as amended, for a manufactured home estate on Lot 1 in DP 124173 known as 550-578 River Street, West Ballina is determined by refusal of consent. (3) The exhibits may be returned. Catchwords: APPEAL – manufactured home estate – refusal of development consent – proposed development partly on coastal wetlands and littoral rainforests area made under State Environmental Planning Policy No 36 – Manufactured Home Estates – development impermissible under Manufactured Home Estates State Environmental Planning Policy – jurisdictional preconditions to grant of development consent – precondition under cl 9(1) of the Manufactured Home Estates SEPP – satisfaction that development not adversely affect land having special landscape, scenic or ecological qualities under applicable environmental planning instrument – precondition under cl 11(1) of the Coastal Management SEPP – satisfaction that development not significantly impact on biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest – precondition under s 7.16 of the Biodiversity Conservation Act 2016 – opinion that development likely to have serious and irreversible impacts on biodiversity values – preconditions to grant of consent not satisfied – consent refused Legislation Cited: Ballina Local Environmental Plan 2012 Biodiversity Conservation Act 2016 ss 6.5, 6.12, 7.2, 7.4, 7.16 Biodiversity Conservation Regulation 2017 cl 1.4, 6.1, 7.1 Coastal Management Act 2016 Environmental Planning and Assessment Act 1979 (NSW) ss 4.16, 4.17 State Environmental Planning Policy (Coastal Management) 2018 cll 6, 11 State Environmental Planning Policy No 36 – Manufactured Home Estates cl 6, sch 2 Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Cameron v Nambucca Shire Council (1997) 95 LGERA 268 Helman v Byron Shire Council (1995) 87 LGERA 349 Hornsby Council v Vitone Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2020) 247 LGERA 277; [2020] NSWCA 281 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Tomasic v Port Stephens Council [2021] NSWLEC 56 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Category: Principal judgment Parties: Planners North (Applicant) Ballina Shire Council (Respondent) Representation: Counsel: Mr P Tomasetti SC (Applicant) Mr A Stafford (Respondent)