The Land and Environment Court of New South Wales recently dismissed appeals by Ballina Island Developments Pty Ltd against Ballina Shire Council, highlighting the critical need for section 68 approvals in addition to development consents.

Quick Guide to Section 68 Approvals

Section 68 approvals under the Local Government Act 1993 (LG Act) are critical for certain activities that go beyond the scope of standard development consents. These approvals specifically govern activities related to water, sewerage, and stormwater infrastructure, as well as other public health and safety concerns. The Act delineates various activities that require approval, ensuring that local councils retain control over essential public services and infrastructure projects. This regulatory framework ensures that developments are not only compliant with environmental and planning laws but also meet local government standards to protect public interests and environmental sustainability.

The process for obtaining a section 68 approval is distinct yet complementary to obtaining development consent under the Environmental Planning and Assessment Act 1979. While development consent focuses on the broader aspects of land use and environmental impact, section 68 approvals address specific infrastructural and operational details that are crucial for the safe and efficient execution of development projects. For instance, even if a development consent is granted, the project cannot proceed without securing the necessary section 68 approvals for activities like stormwater management or sewerage connections. This layered approach to regulation helps to ensure that all aspects of a development are thoroughly vetted and approved before construction begins.

A notable point about section 68 approvals is their role in ensuring compliance with local policies and regulations. This assessment process is designed to mitigate potential risks and impacts associated with development activities in a specific area. For this reason, an understanding of the requirements for section 68 approvals is essential for both local councils and those seeking to carry out development.

Facts of the case

Ballina Island Developments Pty Ltd sought approval under section 68(1) of the LG Act for stormwater, sewerage, and water infrastructure related to two significant residential subdivision projects in Lennox Head. Despite having obtained development consents for these subdivisions, the applicant required additional section 68 approvals for specific activities.

Key Legal Issue

The primary issue was whether the proposed stormwater drainage works complied with the conditions of the existing development consents. The Council contended that the section 68 applications did not meet the necessary standards, particularly concerning the protection of the endangered freshwater wetland ecological community (EEC) on the site.

Key Determinations of the Court

1. Non-Compliance with Conditions: The Court found that the proposed stormwater drainage works did not comply with several conditions imposed under the development consents. These conditions were crucial for protecting the freshwater wetland EEC. The inadequacies in the stormwater management plans and the failure to meet the required standards for stormwater drainage works were significant factors in the Court’s decision.
2. Jurisdictional Constraints: The Court emphasised that it lacked jurisdiction to approve the section 68 applications in the absence of compliance with the development consent conditions. This decision reinforces the legal principle that development consents and section 68 approvals are distinct yet interconnected processes, each requiring strict adherence to regulatory standards.
3. Environmental Considerations: A major aspect of the ruling was the potential impact on the freshwater wetland EEC. The Court highlighted the importance of rigorous environmental monitoring and adaptive management plans to mitigate adverse ecological impacts, illustrating the stringent requirements for obtaining section 68 approvals in environmentally sensitive areas.

Key Takeaways

This case serves as a critical reminder that obtaining development consent is not the final step in the approval process. Section 68 approvals, which can be required if specific activities are being undertaken, must also be secured. Failure to comply with all conditions of development consents can lead to the refusal of necessary additional approvals, halting project progress and potentially leading to significant financial and operational setbacks.

This judgment underscores the need to:

• ensure all environmental and infrastructural conditions of development consents are meticulously met.
• prepare comprehensive and compliant management plans addressing all potential environmental impacts.
• engage in thorough consultations with local councils and relevant authorities to preemptively address any compliance issues.

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You can read the full judgment below.