EMGA Mitchell McLennan Pty Limited v Byron Shire Council

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 2016Date of orders: 31 May 2016 Decision date: 31 May 2016 Jurisdiction:Class 1Before: 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...