Australand Holdings Ltd v Sutherland Shire Council (No 1)

[2003] NSWLEC 269

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Land and Environment Court

of New South Wales

CITATION:	Australand Holdings Ltd v Sutherland Shire Council (No 1) [2003] NSWLEC 269
PARTIES:	Applicant: Australand Holdings Ltd Respondent: Sutherland Shire Council
FILE NUMBER(S):	11023 and 11024 of 2000
CORAM:	Roseth SC - Hoffman C
KEY ISSUES:	Designated Development - Development Application - Practice and Procedure - Subdivision :- Department of Environment and Conservation
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	14, 15, 16, 17, 20, 22, 23, 24, 27, 28, 29, 30 and 31 October 2003
EX TEMPORE JUDGMENT DATE :	10/31/2003
LEGAL REPRESENTATIVES:	Applicant Mr B Preston, SC Solicitors Cowley Hearne Respondent Mr T Robertson SC Solicitors Woolf Associates

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10123 and 10124 of 2000
Roseth SC
Hoffman C

31 October 2003

Australand Holdings Ltd

Applicant
v

Sutherland Shire Council

Respondent

Judgment relating to the question whether the proceedings should be adjourned pending the views of the Department of Environment and Conservation

1 It is common ground between the parties that there are between 600 and 1,000 Green and Golden Bell Frogs (GGBFs) on the site. The GGBF is a threatened species under the TSP Act. The development application includes a Species Impact Statement (SIS) for the GGBF. If the council wished to approve the application, it would require the concurrence of the Department of Environment and Conservation (DEC). The Court is not bound by this requirement.

2 While the council had referred the SIS to the DEC’s predecessor, the National Parks and Wildlife Service, the referral was for comment, not for concurrence. On that basis, the DEC’s response, signed by the Acting Manager of Central Conservation Programs and Planning and dated 13 September 2003, did not indicate whether it would grant concurrence. The letter made reference to the fact that “the development applications mentioned above are now the subject of an appeal shortly to be heard in the Land and Environment Court”.

3 On the second last day of the thirteen-day hearing, the Court received a letter, dated 29 October 2003, from the Manager of the Threatened Species Unit, Central Conservation Programs and Planning Branch of the Environment Protection and Regulation Division of the DEC. The letter indicated that the DEC would “be happy to review the relevant documents and indicate whether the Department is of the opinion that the matters that we have stated need to be addressed (Director General’s requirements for the Species Impact Statement), have been satisfactorily addressed and whether concurrence should be granted in accordance with the relevant considerations in section 79B(5) of the EP&A Act 1979”. The review would not be ready until 14 November 2003, ie two weeks after the final day of the hearing.

4 While the Court is not bound by the concurrence provisions, it is always ready to consider the views of government departments in the context of the evidence before it. In this case the Court would have been assisted by the DEC’s views. However, these views should have been available during the period set for the hearing.

5 The hearing was scheduled for 14 October long before that date. On the 13 September (if not before) the DEC was aware of the imminent nature of the hearing. There was ample time for the DEC to indicate to the Court that it wished to give evidence in the proceedings. Alternatively, it would have been open to the council to include the DEC’s views in its evidence.

6 If the Court were now to accept the DEC’s offer to review the application, it would have to adjourn the hearing for at least four weeks. The party not favoured by the review’s result is likely to apply to re-open the case. The Court has a duty to conclude cases in reasonable time. Delaying the decision and extending an already lengthy hearing would further increase costs to the parties. The Court has before it the expert evidence of five experts in relation to the GGBF. We do not think that the chance of receiving evidence from a sixth expert justifies an adjournment.