Peter Walter Carmont v. Ballina Shire Council [1998] NSWLEC 122

Land and Environment Court of New South Wales

CITATION : Peter Walter Carmont v. Ballina Shire Council [1998] NSWLEC 122 APPLICANT Peter Walter Carmont PARTIES : RESPONDENT Ballina Shire Council FILE NUMBER(S) : 10236 of 1998 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Ballina Local Environmental Plan 1987 cl 12 CASES CITED: DATES OF HEARING: 07/08/98 EX TEMPORE JUDGMENT DATE : 08/07/1998

APPLICANT Mr J B Maston, Barrister Peter W Carmont LEGAL REPRESENTATIVES: RESPONDENT Mr P K Lalich, Solicitor Allen Allen & Hemsley

JUDGMENT: In these class 1 proceedings four questions of law have been raised as preliminary questions.

The questions are as follows.

(1) Whether or not cl 12(3) of Ballina Local Environmental Plan 1987 prohibits:

(a) the erection of a tourist facility on the land consisting of a bed and breakfast establishment; and

(b) the erection of such a tourist facility on the land, part of which is intended to be occupied by the owner/manager of the facility.

(2) Whether or not the erection of the building proposed in the development application is prohibited.

(3) Whether the development proposed in development application No 1998/129 for lot 2 DP 607237 No 2 Pacific Highway, Tintenbar, is a "dwelling house", a "tourist facility" or a "bed and breakfast establishment" for the purposes of the Ballina Local Environmental Plan 1987.

(4) If the proposed development is properly characterised as a "dwelling house" or a "bed and breakfast establishment", whether the Court is entitled to hear this appeal in the absence of proper objection under State Environmental Planning Policy No 1.