Friends of Malua Bay v Perkins & Eurobodalla Shire Council

July 2014

The Land and Environment Court rejected a legal challenge by community group, Friends of Malua Bay, to a residential development on the NSW south coast.  

EDO NSW acted for the group in its legal challenge of the Eurobodalla Shire Council’s  approval of a 30 lot subdivision on land at Malua Bay, near Bateman’s Bay.

The group argued that the Council failed to consider certain sections of its own Rural Local Environment Plan 1987 (LEP) when it approved the development..  Friends of Malua Bay argued that the law requires Council to be satisfied that the development is consistent with the objectives of the zone in the local environmental plan and that Council must consider the impact of the development on patterns of land use in the Urban Expansion zones.

Justice Craig of the Land and Environment Court, in a judgement handed down on July 14. 2014, found there was no requirement under the 1987 LEP for the council to form its own view as to whether the development, as proposed, is in fact consistent with the objectives of the relevant zone under the LEP.

The Court found that as the council had previously inspected the relevant land for the purpose of rezoning, an inference could be drawn that all councillors were familiar with the land and the pattern of land use both present and intended at that time. This inference, in concert with the material provided by the developer, was enough to satisfy the court that the council had discharged its legal obligation of consideration under the LEP.

The Court reserved its decision on costs and referred to the rule of the Court relating to cases that are brought in the public interest.

EDO NSW is grateful to barrister Fenja Berglund who acted as counsel for the Friends of Malua Bay in this case.

 

Judgment