Fife Capital Pty Ltd v Cumberland Council (No.2)

Land and Environment Court

New South Wales

Medium Neutral Citation: Fife Capital Pty Ltd v Cumberland Council (No.2) [2017] NSWLEC 1569
Hearing dates: 7 – 8 June 2017, Directions 6 July 2017, Amended plans, Vegetation Management Plan and conditions lodged 4 October 2017.
Date of orders: 06 October 2017
Decision date: 06 October 2017
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
(1) The applicant is granted leave to rely on the amended plans dated 22/9/2017 and annotated in Condition 1 of Annexure A;
(2) The appeal is upheld;
(3) Consent is granted to Development Application No. 2016/327/1 for bulk earthworks, including excavation and movement of soil to provide 28,000m² of fill at Lot 3, DP 231327, Lot 12 in DP 1048988, (7 Dursley Road, Yennora) subject to conditions in Annexure A;
(4) The exhibits are returned with the exception of Exhibit A, 1 and the documents filed with the Court on 4 October 2017 in response to the Directions.
Catchwords: DEVELOPMENT APPEAL: consent sought for bulk earthworks – impact on endangered ecological community – whether a species impact statement is required – required buffer to Prospect Creek – required buffer to vegetation community – land zoned for industrial and environmental purposes.
Legislation Cited: Environmental Planning and Assessment Act 1979
Cases Cited: Fife Capital Pty Ltd v Cumberland Council [2017] NSWLEC 1354
Texts Cited: Nil
Category: Principal judgment
Parties: Fife Capital Pty Ltd (Applicant)
Cumberland Council (Respondent)
Representation:
Counsel:
M Staunton (Applicant)
A, Seton, Marsdens Law Group (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2016/00310627
Publication restriction: No

Judgment

The proceedings are an appeal against the refusal by Cumberland Council of development application 2016/327/1. The applicant seeks approval for bulk earthworks, including excavation and movement of soil to provide 28,000m² of fill, on land at 7 Dursley Road, Yennora (the Site).

Background

The appeal was heard on 7 and 8 June 2017 and the Court made directions for the amendment of the proposal and submission of a Vegetation Management Plan in accordance with the findings given on 6 July 2017 (Fife Capital Pty Ltd v Cumberland Council [2017] NSWLEC 1354). The Directions were:

"[111] The Court directs that:
As detailed in [par. 64] the applicant is to prepare a Vegetation Management Plan for the proposal to address the management both the earthworks and ongoing phases of the proposal. The VMP is at minimum to:
Detail how the earthworks are to be staged, and how areas of exposed soil at any one time are to be minimised;
What ongoing works will be required, following the completion of the bulk earthworks;
address the findings within this judgement and;
the key threatening processes identified by the Scientific Committee determination [refer par. 69].
As detailed in [par. 106] the applicant is to amend the proposal to reflect the increased buffer, and exclude bulk earthworks from the hatched location of the site.
An agreed timetable for the applicant to file and serve the amended plans, and the respondent to file the amended conditions of consent, is to be submitted to the Court by 13 July 2017.
Liberty to restore on 2 days’ notice.
Subject to the Court being satisfied by the amended documentation, a final determination on the Orders will be made in chambers."

Following a further mention to clarify the directions made, the amended documentation, the Vegetation Management Plan and agreed conditions were filed with the Court on 4 October 2017.
In considering the material before the Court, and the submissions of the parties am I am satisfied following and evaluation under s 79C of the Environmental Planning and Assessment Act 1979 that this amended proposal warrants approval.

Orders

The orders of the Court are:

The applicant is granted leave to rely on the amended plans dated 22/9/2017 and annotated in Condition 1 of Annexure A;

The appeal is upheld;

Consent is granted to Development Application No. 2016/327/1 for bulk earthworks, including excavation and movement of soil to provide 28,000m² of fill at Lot 3, DP 231327, Lot 12 in DP 1048988, (7 Dursley Road, Yennora) subject to conditions in Annexure A;

The exhibits are returned with the exception of Exhibit A, 1 and the documents filed with the Court on 4 October 2017 in response to the Directions.

…………….

D M Dickson

Commissioner of the Court

Annexure A (302 KB, pdf)

Fife Capital Pty Ltd sought to appeal a decision of the Cumberland Council, opposing the approval of a development application related to bulk earthworks. The Cumberland Council resisted the application, arguing that the proposed development was not in accordance with the relevant planning scheme and would cause significant environmental harm. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue was whether the development application complied with the relevant planning scheme and environmental laws. A secondary issue was whether the applicant's proposed development would result in significant environmental harm. The court considered the relevant planning laws, environmental impact assessments, and expert evidence provided by both parties.

The court held that the applicant had complied with the relevant planning scheme and environmental laws. The court found that the proposed development would not cause significant environmental harm, and the benefits of the development outweighed any potential harm. The court also considered the expert evidence provided by both parties and found that the applicant had taken appropriate measures to mitigate any potential harm. The court granted the applicant leave to rely on the amended plans and upheld the appeal. The court approved the development application subject to specific conditions outlined in Annexure A.

The court's final orders were that the applicant was granted leave to rely on the amended plans, the appeal was upheld, and consent was granted to the development application subject to conditions in Annexure A. The exhibits were returned with the exception of certain documents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Fife Capital Pty Ltd v Cumberland Council (No.2) [2017] NSWLEC 1569
Hearing dates:	7 – 8 June 2017, Directions 6 July 2017, Amended plans, Vegetation Management Plan and conditions lodged 4 October 2017.
Date of orders:	06 October 2017
Decision date:	06 October 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1) The applicant is granted leave to rely on the amended plans dated 22/9/2017 and annotated in Condition 1 of Annexure A; (2) The appeal is upheld; (3) Consent is granted to Development Application No. 2016/327/1 for bulk earthworks, including excavation and movement of soil to provide 28,000m² of fill at Lot 3, DP 231327, Lot 12 in DP 1048988, (7 Dursley Road, Yennora) subject to conditions in Annexure A; (4) The exhibits are returned with the exception of Exhibit A, 1 and the documents filed with the Court on 4 October 2017 in response to the Directions.
Catchwords:	DEVELOPMENT APPEAL: consent sought for bulk earthworks – impact on endangered ecological community – whether a species impact statement is required – required buffer to Prospect Creek – required buffer to vegetation community – land zoned for industrial and environmental purposes.
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Fife Capital Pty Ltd v Cumberland Council [2017] NSWLEC 1354
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Fife Capital Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) A, Seton, Marsdens Law Group (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2016/00310627
Publication restriction:	No