S J Connelly Pty Ltd v Ballina Shire Council [2011] NSWLEC 1045

Land and Environment Court New South Wales

Medium Neutral Citation: S J Connelly Pty Ltd v Ballina Shire Council [2011] NSWLEC 1045 Hearing dates: 20, 21, 22 September 2010, 19 November 2010 Decision date: 27 January 2011 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Development Application 2009/689 to use of an existing approved tourist hotel at 2 Martin St, Ballina for permanent residential use as well as tourist accommodation is refused 3. The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION - use of part of an existing approved tourist hotel for permanent residential use as well as tourist accommodation - inconsistency with zone objectives - weight to be given to draft LEP - inconsistent with mixed use development - off-street car parking - noise - solar access, safety - security - waste disposal - lack of communal landscaping - incompatibility between long term and short term users of the building - inconsistency with the Ministerial approval for the tourist hotel - incompatibility of the two consents operating concurrently. Legislation Cited: Ballina Local Environmental Plan 1987 Ballina Shire Combined Development Control Plan Draft Ballina Local Environmental Plan 2010 State Environmental Planning Policy No. 65 Cases Cited: 187 Kent Pty Limited v Council of the City of Sydney [2007] NSWLEC 88 Dem Gillespies v Warringah Council [2002] NSWLEC 224 Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 Inghams Enterprises Pty Ltd v Kira Holdings and anor [1996] 90 LGERA 68 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Waverley Council v C M Hairis Architects [2002] NSWLEC 180 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: S J Connelly Pty Ltd (Applicant) Ballina ShireCouncil (Respondent) Representation: Counsel: Mr P Tomasetti SC (Applicant) Mr N Hemmings QC (Respondent) Solicitors: McCartney Young Lawyers (Applicant) Allens Arthur Robinson (Respondent) File Number(s): 10274 of 2010