S J Connelly Pty Ltd v Byron Shire Council

COURT OR TRIBUNAL

New South Wales Land and Environment Court

DATE FILED (OR FIRST HEARING DATE)

19/01/2009

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Flood risk

REVIEW TYPE

Merits review

SUMMARY

SJ Connelly (applicant) was denied development approval for a residential plot of land by the Byron Shire Council (respondent) on the grounds that the development was situated on ‘flood liable land’ and the Council was not satisfied that the development would ‘not increase the level of flooding on other land in the vicinity.’ SJ Connelly challenged the denial of the development approval. Central to the decision was a dispute concerning two sets of flood modelling performed by a third party, in both 2003 and 2007. Both of these models were shown, at least in some respects, to be inaccurate. In refusing to provide development approval, the Council relied on the 2003 model, which suggested a higher risk of flooding in the catchment. The applicant urged the court to accept the 2007 model, which indicated a lower risk of flooding. The Court accepted the 2007 model, but cited the uncertainty of climate change as a key factor in their eventual decision to deny development approval, as the uncertainty of rainfall in the catchment meant that the Court could not be sure that the development would not increase the likelihood of flooding.

CASE DOCUMENTS

S J Connelly Pty Ltd v Byron Shire Council [2009] NSWLEC 1068