Fabcot Pty Limited v Byron Shire Council [2010] NSWLEC 1013

Land and Environment Court of New South Wales

CITATION : Fabcot Pty Limited v Byron Shire Council [2010] NSWLEC 1013 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Fabcot Pty Limited PARTIES : RESPONDENT Byron Shire Council

FILE NUMBER(S) : 20491 of 2009

CORAM: Hussey C

KEY ISSUES: LOCAL GOVERNMENT APPROVAL :- Section 68, On site sewage management system (OSMS); site suitability; groundwater; on-site irrigation pump-out risk; future sewer connection.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1993 Byron Local Environmental Plan

DATES OF HEARING: 28-29 September 2009, 16, 18 and 20 November 2009, 18 and 23 December 2009

DATE OF JUDGMENT: 27 January 2010

APPLICANT Mr C McEwen (SC) Mr M Staunton (Barrister) SOLICITOR LEGAL REPRESENTATIVES: Corrs Chambers Westgarth

RESPONDENT Mr T Robertson (SC) SOLICITOR HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

27 January 2010

20491 of 2009 Fabcot Pty Limited v Byron Shire Council

JUDGMENT Background. 1 This appeal is against Byron Shire Council's refusal of an application made pursuant to Section 68 of the Local Government Act 1993 for the installation and operation of an on site sewer management system ("OSMS") to service an approved but not yet constructed supermarket and liquor store ("Development") at Lot 1 DP112508, Station Street, Mullumbimby ("Land"). 2 The s 68 application follows the development consent previously granted by the Minister for Planning and contains complete details of the OSMS to enable its construction and operation on the basis of the plans and supporting information tendered to the Court. In this case, the respective engineers and environmental consultants discussed a number of detailed technical modifications to the original design, resulting in their general agreement to the adequacy of the final details submitted. 3 The conferencing by the respective experts has involved: Mr T Bristow; Council's consulting engineer, Ms C Hird; Council's environmental consultant, Mr N Sutherland; Council's consulting environmental scientist Dr D Martens; Applicant's consulting environmental engineer, 4 The evidence discussed by these experts is of a detailed technical nature. Considering the revisions made during the appeal process, the applicant has provided written submissions, which contain the updated OSMS plant details and Management Plan. In the absence of any challenge to these technical details, I rely on these updated facts, which are reproduced in the following text.