Avalon Property Developments v Ballina Shire Council [2008] NSWLEC 1402

Land and Environment Court of New South Wales

CITATION : Avalon Property Developments v Ballina Shire Council [2008] NSWLEC 1402

Applicant: Avalon Property Developments Pty Ltd PARTIES : Respondent: Ballina Shire Council

FILE NUMBER(S) : 10181 of 2008

CORAM: Roseth SC - Taylor C

KEY ISSUES: Question of Law :- definition of public works and services

DATES OF HEARING: 7 October 2008

DATE OF JUDGMENT: 14 October 2008

Applicant: LEGAL REPRESENTATIVES: Mr J Webster, SC Respondent: Mr N Hemmings, QC

JUDGMENT: - 6 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC, Taylor C

14 October 2008

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

JUDGMENT 1 Senior Commissioner: The appeal is against the deemed refusal by Ballina Shire Council (the council) of a development application for a subdivision of 140 allotments at 121 Rifle Range Road Wollongbar. The council has posed two preliminary questions, said to be of mixed fact and law. 2 The two questions are: (i) Are any or all of the proposed drainage basins, drainage treatment works, drainage channels and sewerage works proposed to be constructed in land zoned 7(d) Environmental Protection (Scenic Escarpment), "public works and services" within the meaning of objective 1(C) of zone 7(d) in the Table to clause 9 of the Ballina Local Environmental Plan 1987 (BLEP)? (ii) 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 7(d) in the Table to clause 9 of the BLEP? 3 During the hearing the applicant tendered plans that show that the facilities to which the questions relate are: · a sewer line partly located in the 7(d) zone; and · four drainage detention basins also located in the 7(d) zone. The basins are designed to function as sedimentation basins during construction. One of the basins is entirely within the 7(d) zone; one is half in the 7(d) zone and half in the 2(b) zone; and two are in the 7(d) zone only to a minor extent. 4 The questions must therefore be answered in respect of that part of the sewer line that is located in the 7(d) zone and those parts of the detention basins that are located in the 7(d) zone.