Smith v Eurobodalla Shire Council [2023] NSWLEC 1345

Land and Environment Court New South Wales

Medium Neutral Citation: Smith v Eurobodalla Shire Council [2023] NSWLEC 1345 Hearing dates: 14-15 June 2023 Date of orders: 07 July 2023 Decision date: 07 July 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA0371/21 which seeks construction of a two-storey dwelling house and associated civil works on Lot 9 Deposited Plan 571676, also known as 13 Wharf Street, Nelligen is determined by the grant of consent, subject to conditions in Annexure A. (3) The exhibits are retained. Catchwords: DEVELOPMENT APPLICATION – single dwelling house – flood risk mitigated – site suitability – lot consolidation not reasonable Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.16, 4.17, 4.47, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Eurobodalla Local Environmental Plan 2012, cll 1.2, 1.8A, 2.3, 5.21, 6.3, 6.5, Sch 1 cl 15A Land and Environment Court Act 1979, ss 34AA, 34D Marine Estate Management Act 2014, s 56 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.8, 2.10, 2.11, 4.6 State Environmental Planning Policy Amendment (Flood Planning) 2021, Sch 1 Cases Cited: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Texts Cited: Australian Institute of Disaster Resilience, Flood Hazard, Guideline 7-3, 2017 Australian Institute of Disaster Resilience, Managing the Floodplain: A Guide to Best Practice in Flood Risk management in Australia, Handbook 7, 2017 Department of Planning and Environment, Support for Emergency Management Planning, Flood Risk Management Guide EMO1, February 2022 Department of Planning, Industry and Environment, Planning Circular PS 21-006 Considering flooding in land use planning: guidance and statutory requirements, 2021 Nelligen Village Development Control Plan 2012 NSW Floodplain Development Manual, 2005 Category: Principal judgment Parties: Judith Smith (First Applicant) Jacqueline Bradshaw (Second Applicant) Eurobodalla Shire Council (Respondent) Representation: Counsel: R O'Gorman-Hughes (First and Second Applicants) L Sims (Respondent)