Avalon Property Developments Pty Ltd v Ballina Shire Council [2008] NSWLEC 214

Land and Environment Court of New South Wales

CITATION : Avalon Property Developments Pty Ltd v Ballina Shire Council [2008] NSWLEC 214

APPLICANT Avalon Property Developments Pty Ltd PARTIES : RESPONDENT Ballina Shire Council

FILE NUMBER(S) : 10181 of 2008

CORAM: Sheahan J

KEY ISSUES: Practice and Procedure :- subpoena; application to set aside

LEGISLATION CITED: Interpretation Act 1987

CASES CITED: Arhill Pty Ltd & Others v General Terminal Company Pty Ltd & Others (1990) 23 NSWLR 545 Commonwealth of Australia v Randwick City Council (2000) 109 LGERA 297

DATES OF HEARING: 23 July 2008

DATE OF JUDGMENT: 24 July 2008

APPLICANT Mr J Webster SC SOLICITORS LEGAL REPRESENTATIVES: Somerville Laundry Lomax

RESPONDENT Mr P Lalich, Solicitor of Allens Arthur Robinson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Sheahan J

24 July 2008

10181 of 2008 Avalon Property Developments Pty Ltd v Ballina Shire Council

JUDGMENT

1 His Honour: This Class 1 appeal has already been to an unsuccessful s.34 conference, and is now on the path towards a hearing. This judgment concerns a subpoena. 2 The development application which is the subject of this appeal envisages that some sewerage, stormwater, and other pumping facilities will be positioned on land to the north of, and contiguous with, that which is to be subdivided. 3 Under the Ballina Local Environmental Plan 1987 that land to the north is zoned 7(d) Environmental Protection (Scenic/Escarpment) Zone, the objectives of which zone are as follows: " 1. Objectives of zone A. The primary objectives are: (a) to protect and enhance those areas of particular scenic value to the Shire of Ballina, and (b) to minimise soil erosion from escarpment areas and prevent development in geologically hazardous areas. B. The secondary objective is to enable development as permitted by the primary and secondary objectives for Zone No 1 (b), except for development which could conflict with the primary objectives of this zone. C. The exception to these objectives is development of public works and services, outside the parameters specified in the primary and secondary objectives, but only in cases of demonstrated and overriding public need and subject to the visual impact being minimised as much as is reasonably practical". 4 Council resolved on 27 July 1995 to prepare the LEP amendment which inserted the Zone 7(d) provisions, and approved the amendment on 24 April 2002. It was inserted in the LEP on 8 November 2002. 5 The Applicant has raised a Preliminary Question of Law, with an associated question of fact. The text of the related questions is as follows: " 1. Are any or all of the proposed drainage basins, drainage treatment works, drainage channels and sewerage works proposed to be constructed in land Zoned No. 7(d) Environmental Protection (Scenic/Escarpment), 'public works and services' within the meaning of objective 1(C) of Zone No. 7 (d) in the Table to clause 9 of the Ballina Local Environmental Plan 1987 (BLEP)? 2. If the answer to 1. above is yes, is there any evidence that there is an 'overriding public need' for the drainage basins, drainage treatment works, drainage channels and sewerage works to conform to objective 1(C) of Zone No. 7(d) in the Table to clause 9 of the BLEP?"