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

[2017] NSWLEC 1569

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

1. 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

2. 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."

3. 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.

4. 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

5. 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.

…………….

D M Dickson

Commissioner of the Court

Annexure A (302 KB, pdf)

Decision last updated: 09 October 2017