Anna Bay Resort Pty Ltd v Port Stephens Council

[2020] NSWLEC 1052

Land and Environment Court

New South Wales

Medium Neutral Citation:	Anna Bay Resort Pty Ltd v Port Stephens Council [2020] NSWLEC 1052
Hearing dates:	Conciliation conference on 13 January 2020
Date of orders:	10 February 2020
Decision date:	10 February 2020
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [16] below
Catchwords:	ORDERS – works to complete approved tourist facility – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Anna Bay Resort Pty Ltd (Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: F Shi (Agent) (Applicant) A Pickup (Solicitor) (Respondent)   Solicitors: Local Government Legal (Respondent)
File Number(s):	2019/158569
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Anna Bay Resort Pty Ltd (the applicant) lodged under s 8.18(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the issuing of an order by Port Stephens Council (the Council). Mr Frank Shi is the sole director of Anna Bay Resort Pty Ltd and he filed the appeal.

2. The order requires completion of an approved tourist facility at 84 Gan Gan Road, Anna Bay (the site). Specifically, a Development Control Order (the order) was issued under s 9.34(1) of the EPA Act as a Complete Works Order (Item 13) pursuant to Part 1 of Schedule 5 of the EPA Act in relation to approved development application 16-2009-160 (the approved development).

3. By way of background, in October 2009 the Council granted consent to a tourist facility on the site comprising 154 units with ancillary works: that consent being subsequently modified including to stage the development. In 2012, works commenced in accordance with the modified consent.

4. However, little or no work has occurred in recent years. Since works ceased, the partially completed buildings have deteriorated, been vandalised and impacted by graffiti. The site fences are in disrepair and site sediment controls are in poor condition.

5. The site was purchased by the applicant after the original development company was placed into administration.

6. The Council issued the order based on a concern with safety, sand build-up on the adjacent road reserve, and with the negative visual impact of the partially completed development on the amenity of the local area.

7. The issued order required the applicant to: complete Stage 1 of the approved development in a timely manner; provide a plan for the timing of works to complete Stage 1 and then undertake these works in accordance with the consent; provide updates on the progress of the works at regular intervals; and obtain an Occupation Certificate following completion of Stage 1 within 12 months from the date of the order.

8. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

9. The LEC Act requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

10. The revised order the subject of the agreement recognises the financial limitations on the applicant/owner to complete the development, including the limited funds at the applicant’s disposal and noting that the property is currently up for sale.

11. Accordingly, the revised order addresses the more immediate and practical measures that can be undertaken by the applicant to address the Council’s primary concerns.

12. In this regard, the works agreed to be undertaken by the applicant as reflected in the revised order seek to address sediment and erosion concerns, screen the site and stabilise sand movement with additional landscaping, and relocate derelict buildings from the site’s boundaries or remove graffiti from them.

13. In making the orders, I am not required to make a merit assessment of the issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to modifying the order are met.

14. As the presiding Commissioner, I am satisfied that the decision to modify the order as agreed is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act.

15. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The Court orders:

1. The appeal is upheld.

2. The terms of the Respondent's Development Control Order dated 2 May 2019 are varied to require the owner of the Property to do the following:-

1. Install hay bales along the driveway on Gan Gan Road for sediment and erosion control. This is to be done within 30 days of the date of the order.

2. Plant the remainder of the Gan Gan Road frontage with Cheese trees to match planting undertaken between the driveway and the 4wd access road. This is to be done by 31 July 2020.

3. Relocate derelict buildings and shipping containers as marked with an “X” on the attached plan to the area marked as “1” and “2” on the plan or move them away. This is to be done by 31 July 2020.

4. Remove all graffiti visible from Gan Gan Road and the 4wd access road within 30 days of the date of the order. This is to be maintained at all times.

5. Clear a 5 metre wide landscape strip on 74-84 Gan Gan Road on the northern side of the existing footpath on the boundary adjoining the 4wd access road by 30 June 2020. Within this landscape strip the following works are to be undertaken:

1. Cover landscape strip with 200mm of mulch by 30 June 2020.

2. Plant with coastal rosemary (1 per 5 sqm) and Banksia Integrifolia / Serrata (1 per 10 sqm). This is to be undertaken in the month of July 2020. The pot size is to be 150mm.

3. Install 1 litre of water absorbing gel per plant.

6. Install sediment control fencing along the southern boundary shared with 4wd access road prior to planting. The sediment control fencing is to be installed on the road side of the landscape strip.

……………………….

Jenny Smithson

Commissioner of the Court

Plan (352 KB, pdf)

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Decision last updated: 12 February 2020