Australand Holdings Ltd v Sutherland Shire Council

[2005] NSWLEC 221

Land and Environment Court

of New South Wales

CITATION:

Australand Holdings Ltd v Sutherland Shire Council [2005] NSWLEC 221

PARTIES:

APPLICANT
Australand Holdings Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10123-24 of 2000

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Proposed business/industrial subdivision and conservation area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

18/03/2005 and 15/04/2005

 
DATE OF JUDGMENT: 

05/12/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms Pritchard, barrister
Instructed by
G P Cummins Solicitor

RESPONDENT
Mr Larkin, barrister
Instructed by
MatthewsFolbigg

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

12 May 2005

10123-24 of 2000 Australand Holdings Ltd v
Sutherland Shire Council

JUDGMENT

1 This is a s 96 application to amend consents issued by the Court in appeals Nos. 10123 and 10124 of 2000, between Australand Holdings Limited and Sutherland Shire Council in regard to a proposed business/industrial subdivision and an area of conservation at Nos. 422-450 Captain Cook Drive, Kurnell Peninsula.

2 Appeal No. 10123 deals with the bulk earthworks and appeal No. 10124 deals with the subdivision.

3 The site has within it a State Heritage listed coastal sand dune that is a remnant of the topography existing on Kurnell Peninsula in colonial days. Also on the dune is some woodlands that are a remnant of the bush existing on the Peninsula in pre-colonial days before it was cleared for farming. The area of the site proposed for the business/industrial park had once been dune, but is now relatively flat after having been extensively excavated for construction sand.

4 Part of this area adjacent and adjoining the sand dune has some permanent ponds and some small ephemeral ponds. These and the scrubland swales between have become habitat for the endangered specie known as the Green and Golden Bell-frog. Beyond the site on Botany Bay are Sydney Freshwater Wetlands that are fed by the surface runoff and subterranean ground water of the Peninsula. The wetlands are also protected by statute.

5 The consents granted by the Court in 2004 have extensive conditions that permit the proposal whilst protecting the important environmental entities. Part of the conditions are deferred commencement requirements for the preparation of Management Plans to coordinate construction and conservation works and their maintenance into the future. The purpose of these controls is to assure the success of the total undertaking.

6 Since the consents were issued, further research has been carried out and Management Plans prepared. The respondent advised at the hearing that except for some resolvable matters, the Management Plans and other amendments sought by the applicant are satisfactory and acceptable. There are five Management Plans in all, originally the subject of the deferred commencement conditions.

7 Consent Orders being the case, the applicant advises that two other appeals, numbers 11330 and 11331 of 2004 in regard to the deferred commencement conditions, would be discontinued.

8 Since the respondent has not seen final copies of the negotiated Management Plans and conditions, the hearing has been adjourned to enable final documents to be exchanged and checked. On resumption, the respondent and applicant signed consent orders in Exhibit A of this hearing and copies of the documents were tendered.

9 I read the documents and sought a number of questions for clarification by the parties. The last of these were answered in writing in a letter on the Court’s file dated 14 March 2005. But apparently, this date was caused by automatic computer updates in the sender’s office. The letter had originated from the office of the applicant’s solicitor on 11 March 2005. However, the content of the letter was the same in both instances.

10 Oral evidence on some matters has been given by Dr A W White for the applicant and Mr I Drinnan for the respondent. Dr White specialises in Green and Golden Bell-frogs and their habitats. Mr Drinnan is an enviro-scientist. They clarified the complex arrangements in the updated Management Plan issue 1.0a in Exhibit C to establish fencing at various times during construction: to keep people and predator animals out of certain areas, in some cases to keep frogs in, and in other cases to define parts of the site for construction or other purposes, whilst allowing frogs through.

11 Larger scale plans of figures 7 and 8 in the Management Plan have been inserted to enable the details to be read and understood. I was concerned that in some sequences of construction, it appeared the existing Green and Golden Bell-frogs could be denied access to their foraging areas between ponds. The parties referred to cross references in the Management Plans on pp 18, 19, 20, 24, 39, 42, 43, 47, 48, 124 and 125 that revealed further detailed studies of the actual habitats of the frogs on site had to be done before works commenced, and there would be continual monitoring by the applicant’s experts and independent experts to ensure that construction did not disrupt the endangered species.

12 In order to be sure the further studies and the final procedures would be satisfactory and agreed by an independent frog expert, who was not yet appointed, the parties agreed the deferred commencement conditions should remain, although they would no longer apply to the five Management Plans.

13 This means that the parties are secure in the knowledge that compared to the original consents, many of their conditions are now complied with. This is noted in the amended conditions.

14 Part of the changes to the physical layout of the proposal is the relocation of some new ephemeral breeding ponds for the frogs in different locations to those originally approved. The experts agree the new ponds are preferable to the original ones. This has co-lateral implications for monitoring of water quality of ground water that might affect the water dependent ecosystems, and thus the ponds and foraging habitat, and thus the frogs, as well as the adjacent Sydney Freshwater Wetlands.

15 The trigger densities of contamination in the original consents that would cause action to prevent adverse effects have been altered for various key elements in the ground water. There are some existing and there are to be many permanent bores established on site for continuing regular monitoring of ground water quality as early action to prevent damage is essential. This will be especially so when industrial or business projects are in operation on the site in the future.

16 Some finished contours and ground levels in the business industrial subdivision have also changed to accord with the final drainage plans. Many of the amendments are related to the fact that the changes to the documents necessitated by the conditions of the original consent have now been incorporated in the documents in the s 96 applications. For instance, the original conditions necessitate some changes to proposed allotment boundaries and amalgamation of some lots.

17 The plans have been changed accordingly and this necessitates renumbering of allotments. Many of the original conditions related to specific lot numbers, so those conditions have to be changed where necessary.

18 Tabulation of the changes are listed in Exhibits B and D of this hearing.

19 Having read the documents, I had some additional questions of the parties. These resulted in written submissions and agreement to make further amendments as follows:

In Annexures A and B of the consent orders in Exhibit A, delete the definition of “stage development area.”
In Annexures A and B insert the definition “SFW means Sydney Freshwater Wetlands.”
In Annexure B insert the definition “Independent GGBF expert means the expert nominated by the National Parks and Wildlife Service/Department of Environment and Conservation as referred to in Condition 5.1a.”
In Annexure B insert the additional cl 5.1a as follows;
“To minimise the risk of importing adverse pathogens including chytrid fungus to the site, testing of composts and all other imported materials prior to use on the site will be carried out in a manner approved by the independent GGBF expert.”
Insert in Annexure B the definition “GGBF means Green and Golden Bell-frog.”

20 There being no other matters arising and having regard to the evidence and submissions, I see no reason sufficient to refuse the orders sought by the parties, therefore the Court orders by consent:

1. The appeals are upheld.

2. Appeal No. 10123 of 2000 for modification to the development consent for bulk earthworks on lot 113 DP 777967, known as 422-450 Captain Cook Drive, Kurnell, is determined by the granting of modified deferred commencement consent subject to the conditions in Annexure ‘A’ in Exhibit ‘A’ of this hearing.

3. Appeal No. 10124 of 2000 for modification to the development consent for subdivision as an industrial/business park on lot 113 DP 777967, known as 422-450 Captain Cook Drive, Kurnell, is determined by the granting of modified deferred commencement consent subject to the conditions in Annexure ‘B’ in Exhibit ‘A’ of this hearing.

4. (i) The definition for ‘SFW’ is inserted into Annexures ‘A’ and ‘B’ as contained in this judgment as agreed by the parties.
(ii) The definitions ‘GGBF’ and ‘Independent GGBF Expert’ as contained in this judgment are inserted into Annexure ‘B’ as agreed by the parties.
(iii) Additional condition 5.1A is inserted into Annexure ‘B’ as contained in this judgment agreed by the parties.
(iv) The definition of ‘Staged Development Area’ in both Annexures ‘A’ and ‘B’ is deleted as agreed by the parties.


5. Updated copies of Annexures ‘A’ and ‘B’ with the above amendments be forwarded to the Court by the applicant within 7 days with written endorsement by the respondent for issue by the Court with these Orders.

6. The Court notes that the proceedings in Appeals 11330 and 11331 of 2004 are to be discontinued and the applicant will file the necessary documents when in receipt of a Respondent’s letter of the same intent as exhibit 1 of this hearing.

7. All exhibits A, B, C, D and 1 are retained in the Court’s file.

8. On the basis of the above orders the parties have agreed no orders as to costs.

AMENDED AND FINAL ORDERS
The above was handed down orally on 15 April 2005. Due to the need to comply with Orders 4 and 5 they were not published at that time. Documents have been filed with the Court subsequently such that Orders 4 and 5 can be deleted and Orders 2 and 3 amended and Order 6 is a notation in any case. Therefore the published amended and final Orders by consent are:
1. The appeals are upheld.
2. Appeal No. 10123 of 2000 for modification to the development consent for bulk earthworks on lot 113 DP 777967, known as 422-450 Captain Cook Drive, Kurnell, is determined by the granting of modified deferred commencement consent subject to the conditions in Annexure ‘A’ hereto.
3. Appeal No. 10124 of 2000 for modification to the development consent for subdivision as an industrial/business park on lot 113 DP 777967, known as 422-450 Captain Cook Drive, Kurnell, is determined by the granting of modified deferred commencement consent subject to the conditions in Annexure ‘B’ hereto.
4. All exhibits A, B, C, D and 1 are retained in the Court’s file.
5. The parties have agreed no orders as to costs

NOTE:

The Court notes the applicant’s undertaking to the respondent that the proceedings in Appeals Nos. 11330 and 11331 of 2004 will be discontinued.

_________________
K G Hoffman
Commissioner of the Court
Rjs/ljr