K R Nash & Associates Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979

[2009] NSWLEC 1387

Land and Environment Court

of New South Wales

CITATION:

K R Nash & Associates Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2009] NSWLEC 1387

PARTIES:

APPLICANT
K R Nash & Associates Pty Ltd

RESPONDENT
Minister Administering the Environmental Planning and Assessment Act 1979

FILE NUMBER(S):

10641 of 2009

CORAM:

Bly C

KEY ISSUES:

CONSENT ORDERS :- Modification application; amendments to deferred commencement conditions.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

DATES OF HEARING:

16 October 2009

EX TEMPORE JUDGMENT DATE:

16 October 2009

LEGAL REPRESENTATIVES:

APPLICANT
Miss D Townsend (Solicitor)
SOLICITOR
Mallesons Stephen Jaques

RESPONDENT
Miss A Summerhayes (Solicitor)
SOLICITOR
Legal Services Branch
Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

16 October 2009

10641 of 2009 KR NASH & ASSOCIATES v MINISTER ADMINISTERING THE ENVIRONMENT PROTECTION AND ASSESSMENT ACT 1979

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONER: On 25 October 2007, the Court granted a development consent for the subdivision and erection of a number of dwellings for tourist purposes at lot 41 and 42 DP 107019 Boomerang Drive, Pacific Palms. That consent was subject to a number of deferred commencement conditions that prevented the consent from operating until those matters were complied with. The applicant now seeks to modify the deferred commencement consent pursuant to s 96(8) of the Environmental Planning and Assessment Act 1979.

2 The modifications are twofold. First, deferred commencement condition A1(4) is sought to be modified by omitting the reference to two years as the period for the provision of evidence in relation to the deferred commencement matters with a reference to the 25 April 2010 and effective extension of time of about six months. The second modification proposal involves the deletion of deferred commencement condition A3 that involves the dedication to the Minister for Climate Change, Environment and Water of a parcel of land described as lot B in plan A39 at attachment 3 to the conditions of consent. That deferred commencement condition is to be alternatively incorporated into the operative part of the consent in effectively the same terms, but requiring the dedication to take place prior to the issue of an occupation certificate.

3 The Minister Administering the Environmental Planning and Assessment Act 1979, the respondent in these proceedings, does not oppose these modifications to the consent, and as a consequence the parties have provided the court with consent orders dated 17 September 2009. The modification application was not required to be notified on the basis of the procedures for notification of modification applications as contained in the Environmental Planning and Assessment Regulation 2000, and the council’s notification policy for planning matters. The modifications to the conditions of consent are plainly procedural and do not affect the substance of the consent, merely changing the timeframe in which the deferred commencement conditions are to be met, and the timeframe within which the proposed conservation reserve is to be dedicated to the Minister.

4 By consent, the court makes the following orders,

1. The appeal is upheld.

2. That DA 249/10/2004 granted by the Court in proceedings No. 10530 of 2006 (“the Consent”) be modified as follows:
(A) Condition A1 of Annexure A of the Consent be modified as follows:
(i) Replace the reference to “2 years from the date of this consent” in A1(4) with 25 April 2010.
(B) Condition A3 be deleted from the Conditions in Annexure A and a new Condition F13 be inserted as follows:

“Prior to the issue of the Occupation Certificate, the Applicant shall dedicate to the Minister for Climate Change, Environment and Water a subdivided parcel of land identified as Lot B in Plan A39 at Attachment 3.

Note: Pursuant to s148 of the National Parks and Wildlife Act, 1974, the Minister for Climate Change, Environment and Water may acquire, by gift inter vivos, devise or bequest, any property for the purpose of the National Parks and Wildlife Act 1974, and may agree to the condition of any such gift, devise or bequest.”

3. Exhibit 1 (the Consent Order) is retained.

___________________

T Bly
Commissioner of the Court
Ajl/ljr