RBFI Pty Limited v Wollongong City Council [2017] NSWLEC 174

Land and Environment Court New South Wales

Medium Neutral Citation: RBFI Pty Limited v Wollongong City Council [2017] NSWLEC 174 Hearing dates: 8 December 2017 Date of orders: 12 December 2017 Decision date: 12 December 2017 Jurisdiction: Class 1 Before: Moore J Decision: (1) The appeal is dismissed; (2) Development Application DA 2017/671 for the erection of a dwelling at 15 Arkell Drive, Figtree and the construction of a flood mitigation work in American Creek at Figtree is determined by refusal; and (3) The Exhibits are returned. Catchwords: SEPARATE QUESTION – characterisation of proposed development – development application for construction of a dwelling house and a debris control structure (flood mitigation work) – proposed debris control structure to be located on land owned by the Council some 250 m from the allotment upon which the dwelling is proposed to be erected – the debris control structure will lower flood planning level in several zones and for many residences – development for the purpose of a flood mitigation work prohibited in the R2 Low Density Residential zone – is the proposed debris control structure to be characterised as serving the purpose of the proposed dwelling house or is it to serve the broader purpose of flood mitigation? – the proposed debris control structure is to be characterised as serving the purpose of flood mitigation and is therefore a flood mitigation work and prohibited – separate question answered "No" DEVELOPMENT APPLICATION – appeal against Council's deemed refusal of development application – development application, in part, for development which is prohibited– appeal dismissed and consent for proposed development refused Legislation Cited: State Environmental Planning Policy (Infrastructure) 2007 Wollongong Local Environmental Plan 2009 Cases Cited: Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Conservation of North Ocean Shores Inc v Byron Shire Council & Ors (2009) 167 LGERA 52; [2009] NSWLEC 69 Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe (1964) 110 CLR 529 Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125 Terra Ag Services Pty Limited v Griffith City Council [2017] NSWLEC 167 Category: Principal judgment Parties: RBFI Pty Limited (Applicant) Wollongong City Council (Respondent) Representation: Counsel: Mr S Nash, barrister (Applicant) Ms J Reid, barrister (Respondent)