JNH Group Pty Ltd v Gosford City Council

[2004] NSWLEC 425

Land and Environment Court

of New South Wales

CITATION:	JNH Group Pty Ltd v Gosford City Council [2004] NSWLEC 425
PARTIES:	Applicant: JNH Group Pty Ltd Respondent: Gosford City Council
FILE NUMBER(S):	11030 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- Principle: admitting objectors as party to proceedings seeking consent orders
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	02/08/2004 and 03/08/2004
EX TEMPORE JUDGMENT DATE :	08/03/2004
LEGAL REPRESENTATIVES:	Mr P Clay, barrister instructed by Mr J Hajje, solicitor Mr S Berveling, barrister instructed by Ms P Wright, solicitor

JUDGMENT:

- 5 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

3 August 2004

11030 of 2003 JNH Group Pty Ltd v Gosford City Council

JUDGMENT

1 SENIOR COMMISSIONER: This is an appeal against the refusal by Gosford City Council (the council) of a development application for a road transport facility on lot 12 DP 590280, known as 168 Pacific Highway, Mount White.

2 The parties have come to an agreement in respect of all matters apart from the height of the fence on the boundary that faces the expressway. I have resolved that dispute by requiring a 1.8m high fence, as suggested by the council.

3 I inspected the site in the company of the parties on 2 August 2004. On that occasion I heard the evidence of three objectors, all of them on behalf of the Mount White Ratepayers Association, an association that has about 200 members. The objectors were Mr Larry Irvin, Mr Stuart Daevys and Mr Stephen Harries. They made the following points:

· All residents in the Ratepayers Association object to the proposal.

· The objectors do not believe that the facility will be for short-term stay; rather they think it will become cheap permanent housing.

· There is not enough water, not even to fight bushfires.

· The impact on the Hawkesbury River has not been considered.

· The existing buildings on the site are unauthorised.

4 As regards the length of stay, the conditions of consent require a maximum of two days stay, that advertisements include this restriction as well as a sign to this effect being displayed in the Reception. It is not open to the Court to assume that the applicant will not respect these conditions.

5 As regards the availability of water, there was no other evidence before the Court that this was so. The council’s report notes that the services are adequate to cater for the development, and that there were no objections from any service authority. The council’s bundle of documents includes a letter from the Rural Fire Service of 17 July 2004, saying that the proposal was satisfactory.

6 As regards the impact on the Hawkesbury River, I note that the conditions of consent include the requirement for nutrient control measures. Given those conditions, I find that the council has considered the issue of impact.

7 As regards the unauthorised buildings on the site, the council is unable to find building consents for the house proposed to be the manager’s residence and the building proposed to be a restaurant. The parties have agreed that this inadequacy should be dealt with by a deferred commencement consent condition requiring building certificates in respect of those buildings to be obtained.

8 In addition to the council’s planning report, numerous expert reports to the council and the applicant were tendered in evidence. The overall conclusion to be drawn is that there are no merit matters that are substantial enough to justify refusal of the application.

9 At the hearing on 3 August 2004 the Court had before it an application, referred by the Registrar, from Mr Daevys on behalf of the Ratepayers Association, to be joined as a party to the proceedings. The affidavit accompanying the application states that the reason for wishing to join is that under the Gosford Local Environmental Plan 283 (the LEP) the proposal was illegal. When Mr Daevys expanded on the reasons for his application, he said that his Association’s challenge to the consent orders was on three counts:

· There were irregularities in the making of the LEP.

· If the LEP was properly made, the proposal was prohibited.

· If the proposal was permissible, there are merit reasons why it should be refused.

10 Any challenge to the legality of the LEP must be made under Class 4 of the Court’s jurisdiction. There is a cut-off date of three months after the LEP’s gazettal for such challenges; however, where an illegality is of sufficient import, an applicant may attempt to persuade the Court that the time limitation should be waived. As concerns the challenge to the legality of a consent order on the grounds that the proposal was prohibited, this would have to be made either under the Class 4 jurisdiction of this Court or to the Supreme Court. It would be open to the Ratepayers Association to challenge my decision on those grounds, however this has no relevance to my decision in a Class 1 proceedings.

11 I turn to the merit matters. Mr Daevys told the Court that his Association intended to bring evidence from a bushfire expert, a person from the Department of Environment and Conservation and from a bushland regeneration expert.

Principle: admitting objectors as a party in proceedings seeking consent orders

12 The Court is faced with an application to admit Mr Daevys, as representative of the Ratepayers Association, as a party to the proceedings on the grounds that he has further expert evidence to put before the Court. The application reached the Court on the second day of a hearing for consent orders that has included a site visit and the evidence of three objectors, all of them from the Ratepayers Association. The principle I have adopted for dealing with that application is to ask two questions:

· Is the evidence to be brought by the person(s) wishing to be joined of a kind that is missing from the material presented to the Court?

· Would the effect of granting the application be prejudicial to the applicant and/or respondent?

13 As stated above, the Court has before it a letter of 17 July 2004 from the Rural Fire Service to the effect that the proposal was satisfactory. In addition, the council tendered a report from an expert on bushfire risk Mr B Eady. Also before the Court is a letter of 14 April 2003 from the former National Parks and Wildlife Service, which does not raise objection to the proposal, as well as a letter of 15 June 2004 from the Department of Environment and Conservation, which confirms the earlier letter. The council also tendered a flora survey by Dr A Clements, a botanist. Dr Clements’ report states that no threatened species or ecologically endangered communities were recorded on the site.

14 I find therefore that the areas in which Mr Daevys seeks to put additional evidence before the Court are fully covered by evidence produced by the parties. If Mr Daevys were joined, the proceedings would have to be adjourned for at least two months, causing delay to the applicant and additional expense to both parties. In the circumstances, the granting of Mr Daevys’ application would have only minor benefit to the Court and considerable prejudice to the parties. I therefore refuse his application.

15 However, I note that Mr Daevys has not had sufficient time to obtain proper legal advice and that he may wish to challenge my decision. To allow him time to seek advice and to lodge an application to have my decision reviewed, I stay the consent orders until 10 August 2004.

Orders

1. The appeal is upheld.

2. Development application for a road transport facility on lot 12 DP 590280, known as 168 Pacific Highway, Mount White is determined by the granting of consent subject to the conditions in Annexure A.

3. The above consent is stayed until 10 August 2004.

4. The exhibits are returned except Exhibits 14 and F.

_________________
Dr John Roseth
Senior Commissioner