SEPARATE QUESTION: whether properly characterised, the proposed development is for use for the purpose of a “tourist accommodation” in cl 28(1) of the Ballina Local Environmental Plan 1987 — meaning of “tourist accommodation” — whether use of 116 sites for long-term stays constitutes “tourist accommodation” — answered in the affirmative.
SEPARATE QUESTION: whether a dwelling house is entitled to be erected on land pursuant to cl 12(3B) of the Ballina Local Environmental Plan 1987 — subdivision history of land — whether part of land subject to acquisition by a public authority for a public purpose — answered in the negative.
SEPARATE QUESTION: whether a dwelling house is entitled to be erected on land under cl 12(3)(c) of the Ballina Local Environmental Plan 1987 — meaning of “development consent” under cl 12 of the Ballina Local Environmental Plan 1987 — whether 1991 approval granted by consent authority a “development consent” under the Environmental Planning and Assessment Act 1979 or a consent under the Local Government Act 1919 — power exercised to grant consent unclear from the face of the Notice of Determination and internal assessment documentation — answered in the affirmative.
SEPARATE QUESTION: whether properly construed cl 28 of the Ballina Local Environmental Plan 1987 is an exception to the development control table in cl 9(2) of that instrument, operating to permit the proposed development on the land — construction of cl 28 of the Ballina Local Environmental Plan 1987 — answered in the negative.
Quick Take
1Where an LEP expressly incorporates a definition from a repealed statute (here, 'movable dwelling' in s 288A of the LGA 1919), the incorporation fixes the definition at the time of the repealed provision rather than updating it via s 68 of the Interpretation Act 1987, particularly where the LEP was enacted after the repeal and the subsequent re-enacted definition is materially broader in scope.
2A specific-purpose clause in an LEP (cl 28, tourist accommodation) that imposes development standards and merit assessment requirements does not, without express overriding language such as 'despite', operate as an exception to the zone development control table under cl 9(2) so as to render permissible development that is otherwise innominately prohibited in the zone.
3Where a historical approval's statutory basis is ambiguous on its face — referencing both the EPAA and the LGA 1919 — and the consent authority treated the application as a subdivision and granted conditional approval, the resulting determination constitutes 'development consent' for the purposes of dwelling entitlement provisions in the LEP; a challenge to the lawfulness of that consent is impermissible collateral attack within Class 1 merits proceedings.
