Fabcot Pty Ltd v Wingecarribee SC

[2006] NSWLEC 635

Land and Environment Court

of New South Wales

CITATION:

Fabcot Pty Ltd v Wingecarribee SC [2006] NSWLEC 635

PARTIES:

APPLICANT
Fabcot Pty Limited

RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):

11330 of 2005

CORAM:

Murrell C

KEY ISSUES:

Appeal :- s 96(2), Consent Orders, Traffic and retail space

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

28/03/2006 and 07/04/2006

EX TEMPORE JUDGMENT DATE:

04/07/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms Townsend, solicitor
of Mallesons Stephen Jaques

RESPONDENT
Mr McEwen, sc
Instructed by
B. Blinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

7 April 2006

11330 of 2005 Fabcot Pty Limited v Wingecarribee Shire Council

This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 This is an extempore judgment for consent orders that have come before the Court this morning. The application is an application under s 96(2) of the Environmental Planning and Assessment Act against council’s refusal of an application to modify a consent previously granted by the council in 27 May 2005. The consent of 27 May 2005 was also amended by a previous s 96 application of 3 November 2005. The subject property known as No. 193-197 Old Hume Highway, Mittagong.

2 The amendments that the applicant is seeking are to conditions contained in council’s original consent with respect to traffic engineering contributions and works in association with the proposal. The proposal is for a shopping centre with a Woolworth’s style development, and a Big W discount store, mini/major retail space, and basement retail space, with specialty shops.

3 The land is a vacant parcel of land of some 26,500 sq m, commercially zoned and the site is surrounded by a plant nursery, recreational areas, and also within the vicinity of a residential area.

4 When the matter came before me last week, in accordance with the Court’s practice direction, objectors had not been advised. The respondent, has now advised all those who made submissions, (that is three objectors and a letter of support), that the council is now entering into consent orders. The Court is satisfied that the spirit and intent, and indeed the requirements of the Court’s practice direction for consent orders, has now been complied with, and all those persons that made submissions to the s 96 application have been advised.

5 The council received a response from one objector, Ms Christine Beazley, and she advised that she would not be availing herself of the opportunity of attending the proceedings this morning. I have read all the objections in respect of the s 96 application, and in particular I will go to Ms Beazley’s response. She is concerned about the process that council went through in terms of the original approval of the development application, and also she makes the comment that she considers, or the process has denied local residents and businesses the right to be heard and fairly considered. As I stated, her concerns in many respects go to the original consent.

6 Mr Theodore Onisforou also made a submission to the council, and he is also concerned about the processes of the original development application. I am satisfied in terms of the processes for these consent orders, that is the s 96 modification before me that there is nothing that would warrant the Court not agreeing to the 96 amendments before me today in the consent orders.

7 Another submission was from Mr Mark Davidson, and he expressed concerns about many of the traffic issues. In this regard a Court-appointed traffic expert was appointed, Mr John Coady, who provided advice on his comments and on the requirements for traffic management in the area as a result of the proposed development.

8 The other objection was that of Ms Marlene Lynam, and she is once again concerned about the denial of natural justice, and also about the additional retail tenancies.

9 The council has assessed the s 96 application and there is an assessment report, and council is now of the opinion, with the amendments and with the traffic management provisions provided by the applicant, and with the benefit of the Court-appointed expert’s independent report that the proposal is now satisfactory,

10 The Court considers that there is no reason why it should not enter into the consent orders for the modifications to the consent, and as such the consent orders are agreed to by the Court.

11 The parties have gone through the relevant conditions to be amended by way of the consent orders and, as I stated, there is a Court-appointed expert’s report which addresses those issues. Some of the issues that were originally part of the s 96 application, such as the signage, have also been agreed to by the council in terms of further discussions with the applicant.

12 Therefore on the basis of the evidence to the Court, I am satisfied that the consent orders can be issued by the Court, and the formal orders of the Court are:

1. The appeal under s 96(6) of the Environmental Planning and Assessment Act is upheld by consent.

2. The application to further modify the consent issued by Wingecarribee Shire Council 27 May 2005 and amended 3 November 2005, is approved as contained in Attachment 1 of the development is subject to the conditions contained in Annexure A.

3. The exhibits except B, 2, 10 and 12 are returned to the parties.

4. The Court notes the parties have agreed to pay their own costs.

___________________

J S Murrell
Commissioner of the Court
ljr