S J Connelly Pty Ltd v Ballina Shire Council

Introduction 1 HER HONOUR: This case concerns the construction of a deferred commencement consent (DA 2004/605, or "the DA") granted by Ballina Shire Council ("the council") to the applicant, S J Connelly Pty Ltd ("SJ"), on 24 June 2004. 2 Specifically, it concerns the question of whether the conditions imposed by a deferred commencement consent can have the effect of binding a council's determination of a future development application in respect of lots in a related aspect of the same proposal. 3 For the reasons below I have held that the amended summons must be dismissed because properly construed the consent did not impose conditions binding the council as to the terms of any future development application concerning the community title subdivision of the lots in question. Factual Background to the DA 4 The background facts relevant to the disposition of these proceedings are in the main uncontroversial, but are required to be set out in some detail in order to properly understand the issues raised for determination in the proceedings by SJ.

5 On 15 December 2003, SJ a development application was lodged in respect of land described as Lots 12, 13 and 15 in DP 258095 ("the land"). The land was located on Greenfield Road, Lennox Head. A Statutory Planning Assessment was prepared by SJ and lodged with the application. The proposed development was described in section 3.1 of the documents lodged in support of the development application (under the heading "Summary Description of Proposal") as: Development consent is sought to subdivide Lots 12, 13 and 15 in DP258095 creating 16 new lots (including one duplex lot [18] and two lots for future Community Title development [lots 4 and 8]) and 3 lots for existing dwellings. 6 The land the subject of the development application was zoned 2(a) - Residential (Living Area) under the provisions of the Ballina Local Environment Plan 1987 ("the BLEP"). Subdivision was permissible in the 2(a) zone with development consent. 7 Clause 14 of the BLEP permitted dual occupancy development within the 2(a) zone. The BLEP did not prohibit duplex or community title upon the land the subject of the development application. These types of development were, however, inconsistent with some aspects of the Development Control Plan No 1 - Urban Land (" the DCP"), which was applicable to the proposed development. 8 The land was located wholly within the low density, large lots (L1) locality of Lennox Head as identified within the DCP. In this regard, the objectives of the DCP were to: (a) make provision for low density living options for single dwellings being the predominant form of housing or larger than normal lots;