Jefferson M Robinson Associates Pty Ltd v Sutherland Shire Council

Case •

[2006] NSWLEC 461

•

25/07/2006

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Jefferson M Robinson Associates Pty Ltd v Sutherland Shire Council [2006] NSWLEC 461
PARTIES:

APPLICANT
Jefferson M Robinson Associates Pty Ltd

RESPONDENT
Sutherland Shire Council
FILE NUMBER(S): 11128 of 2003
CORAM: Hoffman C
KEY ISSUES: Development Application :- s 96 modification application, compliance with the deferred commencement conditions, bio-retention swale engineering, vegetation managment plan, foreshore rehabilitation, landscape plans, acoustic performance of buildings, community title documents, BCA compliance
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Enivronmental Plan 2000
Sydney Regional Environmental Plan No 17 - Kurnell Peninsula
DATES OF HEARING: 5/06/2006 and 25/7/2006
 
DATE OF JUDGMENT: 
07/25/2006
LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannafords Solicitors

RESPONDENT
Mr J. Reilly, solicitor and
Ms C. Bracks, solicitor
of Abbott Tout Solicitors


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Hoffman

      25 July 2006

      11128 of 2003 Jefferson M. Robinson Associates Pty Ltd v Sutherland Shire Council

      JUDGMENT

1 This is a S.96 application to amend a consent issued by the Court on 19 March 2004 consenting to the change of existing use of a caravan park for 80 sites including 33 permanent resident sites, at 228-294 Prince Charles Parade, Kurnell, to become a Community title subdivision permitting 15 new houses on 15 lots and retaining existing renovated motel units on 2 lots. One existing house is to be demolished to provide a driveway access.

2 This amendment proposes to affect the 3 deferred commencement conditions on the basis that they have been complied with to the satisfaction of council.

3 The parties come to the Court with Consent Orders. The amendments sought are as follows:


    1. That Deferred Commencement Conditions Section A Nos: 1 and 3 of Development Consent No 03/1040 of Court Order No 11128 of 2003 dated 19 March, 2004 are satisfied.

    2. That Deferred Commencement Condition Section A No: 2 of Development Consent No 03/1040 of Court Order No 11128 of 2003 dated 19 March, 2004 be deleted.

    3. That Development Consent No 03/1040 of Court Order No 11128 of 2003 dated 19 March 2004 is activated and there are no further requirements to be satisfied pursuant to Section 80 (3) of the Environmental Planning and Assessment Act 1979.

    4. That Section B Condition 1 of Development Consent No 03/1040 of Court Order No 11128 of 2003 dated 19 March, 2004 be modified to read:
      1. “The development shall be implemented in accordance with the details and specifications set out on:
        • Plan Nos: 0 to 51 inclusive dated November 05 prepared by Studio 88 Designers of Building Solutions as notated certified by Wilkinson Murray Pty Ltd acoustic engineers on 2006.02.21.
        • Landscape Concept Plans 1/2 being Drawing No L01/2-R7203 Rev A dated 25.08.04 and 2/2 being Drawing No L02/2-R7204 Rev A dated 25.08.04. prepared by Michael Sui Landscape Architect.
        • The Vegetation Management Plan prepared by Bowman Environmental, undated and received by Council on 29 September 2004, and Riparian Vegetation Plan prepared by Bowman Environmental, Drawing No: PM 090904 dated 10 September 2004.
        • “Allotment and dwelling site layout” plans Issue B dated 18 June 2003 prepared by Jefferson Robinson & Associates, Sheets 1B/5, 2B/5, 3B/5, 4A/5 and 5A/5.
            and any details on the application form and on any supporting information received with the application, all as amended by the Conditions of Section A (as amended by these Court Orders) and the following conditions”.
    5. That Condition 54 of Development Consent No 03/1040 of Court Order No 11128 of 2003 dated 19 March, 2004 be modified to read:
          54 "A public Positive Covenant pursuant to Section 88E of the Conveyancing Act, 1919 be created on title of Lot 1 and the Lot dedicated as Public Reserve ,as shown on the Plans approved under Condition 55 of the Consent, to require the proprietors of the community lot, excluding Sutherland Shire Council as the proprietor of the public reserve lot, to manage and maintain the vegetation planted in accordance with the Vegetation Management Plan prepared by Bowman Environmental received by the Council on 24 September, 2004 and the plans approved under Condition No 1 of Section B of the Consent ".
    6. That an additional condition, Condition 55 be imposed as follows:
          55 "The applicant shall submit a Community Plan of Subdivision and a Community Management Statement and accompanying documents as required by the Community Land Development Act 1989 and the Community Land Management Act1989 for the approval of Sutherland Shire Council prior to the issue of a Subdivision Certificate by the Council
            The submitted plan shall dedicate to the Council, at no cost, a strip of land abutting the southern boundary of the land covered by this Consent being 5 metres wide and as generally shown as “Public Reserve” in the attached draft Community Plan marked “B”.

4 The existing deferred commencement conditions are:

          SECTION A

          To enable the submission of further information to clarify or resolve specific aspects of the of the proposed development, this consent is issued as a “deferred commencement” consent under the provisions of section 80(3) of the Environmental Planning and Assessment Act 1979. The consent shall not operate until Council is satisfied as to the following matters:-

          1. (a) the submission to, and acceptance by Council of a plan showing -

                (i) The stormwater system being redesigned utilising a bio-retention swale system.

                (ii) Hard surfaces within the development including roads and driveways graded to fall to the grassed bio-retention swale system.

                (iii) The bio-retention swale system draining to the linear wetland between lots 11 and 12.

                (iv) Final discharge to the Quibray Bay wetlands is to be via a drainage depression which extends laterally along the wetlands interface, thereby avoiding an “at point” discharge.

            (b) The submission to Council of an amended landscape plan showing vegetation consistent and continuous with the adjacent riparian zone planning.

            (c) The submission to Council of a Vegetation Management Plan (“VMP”) for the area between the southern property boundary and the wetland interface including the 5 metre dedicated area. The VMP is to include the following matters:

                (i) the VMP shall identify appropriate species planting, densities, locations and on-going management. Special provision for planting shall be noted in the stormwater drainage swale.

                (ii) the VMP shall set performance standards and shall be managed for a minimum of 3 years upon demonstration of satisfactory performance with the VMP.

                (d) The provision to Council of security to the value of $20,000.00 for the performance and maintenance of the VMP. The security is to be released following confirmation by Council’s Director of Environmental Services that the performance standards within the VMP have been met.
                This consent does not commence until Council’s Director of Environmental Services confirms in writing the acceptability of the following plans:
                * The plan referred to at condition 1(a);
                * The amended landscape plan referred to at condition 1(b);
                * The VMP, referred to at condition 1(c).
            The security must also be provided prior to the commencement of the consent.

          2. The provision to council of a plan showing:
            a) The Community Title allotment;
            b) The allotments that for the community title subdivision and the accompanying documentation as required by the Community Titles Act.
            c) The land dedicated to Council at no cost to the Council.
          3. Amended plans of houses to comply with all conditions of consent including section B.21, 22, 23 and 43.

5 Existing Condition 54 is:

          A public positive covenant pursuant to section 88E of the Conveyancing Act 1919 shall be created on proposed lots 10 and 11, as shown on the approved plans, to provide for the maintenance of the approved Vegetation Management Plan. To this end the registered proprietor(s) of the properties thereby burdened shall covenant with Sutherland Shire Council and its successors to manage and maintain the vegetation planted in accordance with the Vegetation Management Plan. The location and extent of the area covered by the Vegetation Management Plan shall be delineated on the Linen Plan for Subdivision.

6 Questions about the documents tendered at the hearing in June prompted Directions inter alia to the parties to provide verification of the acoustic performance of the drawings in Exhibit B. This led to the fact that new drawings had been done in greater detail by Studio 88 and those were the documents checked and certified by the acoustic engineer. In fact the Studio 88 drawings superceded those in Exhibit B by Jefferson Robinson. The Studio 88 drawings were tendered on 25 July 2006, after electronically transmitted printouts were at too small a scale to be read.

7 These new drawings had in turn led to an amended Annexure to the consent orders also substituted in Exhibit 1 on 25 July. This changes Condition 1 Section B of the original Annexure to the consent to identify the new plans by Studio 88, the landscape plans and Vegetation Management Plan and the allotment and dwelling layout plans.

8 A reading of the Studio 88 plans show they are an accurate reflection of the plans originally approved for the proposed buildings, the plans are in greater detail to show compliance with Section A Condition 3 of the original consent conditions.

9 During the initial hearing the applicant tendered in Exhibit A, a certification by Mr C. Kokiousis civil engineer that the engineering design of the stormwater detention system and bio-metric swale had been completed as required by the deferrred commencement conditions together with the Vegetation Management Plan for the riparian buffer zone by Hugo Bowman and revised landscape plans by Michael Siu, and that these all complied with the deferred commencement condition 1. A receipt for the $20,000 security deposit was included.

10 The verification of compliance from the council’s Director of Environmental Services was also tendered on 25 July.

11 The Community Plan was also tendered with the community title subdivision, included in them was the dedication of the foreshore land to Council and the landscape works to it and management by the developer and subsequently the community title body.

12 I have formed the opinion that there is no need for advertisement of the proposed amendments or the Consent Orders because the changes to the conditions do not constitute a change to the intention of the original deferred commencement consent, because it has now been complied with, and this s.96 amendment merely reflects that.

13 Therefore the orders of the Court by consent of the parties is:


          1. That development consent No 03/1040 as granted by the Court in the court orders in these proceedings dated 19th March 2004 be modified in accordance with the conditions as attached in Annexure “A” to these orders.

          2. The exhibits are returned to the parties except Exhibits 1, 2, 3 and A, C, D, E, F.
          The Court notes the parties’ agreement of no order as to costs.
      ________________________
      K.G. Hoffman,
      Commissioner of the Court
      ljr
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