What has happened?
In Morgan v Ballina Shire Council [2026] NSWLEC 87, the Land and Environment Court decided several preliminary questions about a proposed caravan park on rural land at Alstonville. The applicants won the argument that the proposal was "tourist accommodation", but lost the critical argument that this made it permissible.
Context
The site is in the 7(i) zone under the Ballina Local Environmental Plan 1987, which still applies to this land. In that zone, a caravan park is prohibited.
The applicants relied on cl 28 of that plan, which deals with "tourist accommodation" on land where a dwelling house may be erected. They argued that cl 28 created an extra layer of permissibility that overrode the zone's prohibitions.
The Council argued that the proposal, with many sites intended for long-term stays, was not tourist accommodation at all, and that cl 28 could not make a prohibited use permissible.
The decision
Justice Pepper answered the questions as follows:
Was the proposal "tourist accommodation"? Yes. Even allowing for long-term stays, it was not a form of permanent or affordable housing.
Could a dwelling house be erected on the site? Not under one provision relied on, but yes under another, because of the way the lot had been created.
Did cl 28 make the caravan park permissible? No. Clause 28 operates as a development standard limiting the density of tourist accommodation where it is otherwise permissible. Nothing in its text overrides the zone's prohibitions. Where the plan intends to create exceptions, it uses words such as "despite", and cl 28 does not.
Each party was ordered to pay its own costs, given each had partial success.
How will this affect you?
A clause that controls how a type of development is carried out does not necessarily make that development permissible. Check the land use table first.
Older local environmental plans still apply to some land, particularly in regional areas, and can produce unexpected results.
For caravan park and tourist proposals, how the use is characterised remains critical. Here, long-term stays did not stop the proposal being tourist accommodation.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.