Newton Denny Chapelle v Ballina Shire Council [2014] NSWLEC 1123

Land and Environment Court New South Wales

Medium Neutral Citation: Newton Denny Chapelle v Ballina Shire Council [2014] NSWLEC 1123 Hearing dates: 6 June 2914 Decision date: 26 June 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Modification of Consent; whether of minimal environmental impact or substantially the same development; visual impacts Legislation Cited: Environmental Planning and Assessment Act 1979; Ballina Local Environmental Plan 2012; Ballina Local Environmental Plan 1987; Civil Procedure Act 2005 Cases Cited: Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280 Category: Principal judgment Parties: Newton Denny Chapelle (Applicant)

Ballina Shire Council (Respondent) Representation: Mr M Staunton (Respondent) Mr M Young McCartney Young Lawyers (Applicant)

Ms C Huegill CH Law File Number(s): 10911 of 2013

Judgment 1Newton Denny Chapelle (NDC) lodged an application to modify Development Consent DA 20133/105 (original consent) with Ballina Shire Council on 11 April 2013. The modifications sought proposed to alter the way a scaffold business is operated on the site, primarily through allowing open storage of scaffold equipment. 2The council refused the application and NDC is appealing that decision.

The site and the locality 3The site comprises Lot 20 in DP 1051208, known as 1188 Teven Road, Alstonville and has a site area of 3.74ha. It is located in a rural area primarily characterised by macadamia plantations with some rural residential properties and is to the north-east of the Alstonville village. 4A dwelling house, swimming pool and three sheds are located on the site. The shed that is sited in the south-eastern corner is used for the storage of scaffolding in accordance with the provisions of the original consent. Access to that area and associated hardstand vehicle manoeuvring area is from a common driveway off Teven Road that also services the dwelling. 5The shed approved for use as a bulk store is located 7.1m from the southern property boundary and 30m from the Teven Road frontage. It has dimensions of 24m x 9m, area of 216sqm and is open on its northern and western sides and metal clad on the eastern and southern faces. A grass buffer is provided to the north and east of the hardstand area and low scale planting has been introduced along the northern end of the grass buffer. That buffer serves as part of the stormwater management for the bulk store area. The area to which the original consent relates is described as the "top paddock" and is identified by open wire fencing. A row of Syzygium 'Cascade' (lilly pillies) has been planted along the northern fence line and has reached a height of approximately 1m however not all of the plants have grown and there were gaps in the hedgerow. That planting was required as conditions of the original consent and forms part of the plans approved with the construction certificate.