EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63

Land and Environment Court New South Wales

Medium Neutral Citation: EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63 Hearing dates: 26 May 2016 Date of orders: 31 May 2016 Decision date: 31 May 2016 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [74] Catchwords: APPEAL – appeal against Commissioner's decision on questions of law – community title residential development proposal – site of proposed development is a quarry – quarry resource exhausted – proposed development permitted in the 1(e) Extractive Resources Zone – local environmental plan's requirement for consistency with objectives of the zone within which the proposed development is located – how test of consistency is to be applied APPEAL – Commissioner held that the proposed development was neutral in respect to the objectives of the zone and thus not consistent with those objectives –finding vitiated by Commissioner's reasoning process concerning approach to be taken in determining whether or not development was consistent with objectives of the 1(e) Extractive Resources Zone APPEAL – Commissioner also separately held that the proposed development was inconsistent with the objectives of the zone – finding of fact open to Commissioner –– no error of law disclosed in second finding – appeal dismissed APPEAL – no error in primary basis for first instance decision – failure of appeal on primary basis dispositive of appeal – other separate grounds of appeal pleaded – availability of these separate grounds contingent on success on primary ground – no necessity to consider other grounds of appeal Legislation Cited: Byron Local Environmental Plan 1988 Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Greater Taree Local Environmental Plan 1995 Land and Environment Court Act 1979 Wingecarribee Local Environmental Plan 1989 Cases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Conservation of North Ocean Shores v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52 Dem Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147 EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2015] NSWLEC 1498 Forgall v Greater Taree City Council [2015] NSWLEC 61; 209 LGERA 160 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Category: Principal judgment Parties: EMGA Mitchell McLennan Pty Limited (Appellant) Byron Shire Council (Respondent) Representation: Counsel: Mr A Galasso SC/Mr M Staunton, barrister (Appellant) Mr S Nash, barrister (Respondent)