Lifese v Auburn Council

[2005] NSWLEC 379

Land and Environment Court

of New South Wales

CITATION:

Lifese v Auburn Council [2005] NSWLEC 379

PARTIES:

APPLICANT
Lifese Pty Limited

RESPONDENT
Auburn Council

FILE NUMBER(S):

10878 of 2003

CORAM:

Brown C

KEY ISSUES:

Development Consent :- modification of approval granted for the fabrication and engineering of steel products including ancillary storage and offices - extension of time to complete works

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

05/07/2005

EX TEMPORE JUDGMENT DATE:

07/05/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. S. Hale SC
SOLICITORS
Bartier Perry

RESPONDENT
Mr J. Ayling SC
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

5 July 2005

10878 of 2003 Lifese Pty Limited v Auburn Council

JUDGMENT

1 These proceedings come before the Court to modify approval DA201/03 granted by the Court on 10 December 2003 for the use of the premises at 5 Junction Street, Auburn, for the fabrication and engineering of steel products, including ancillary storage and offices. The modification application as originally lodged sought to modify conditions 4, 14 and 35 of DA201/03 however this was later amended to seek the amendment of condition 4 only.

2 Condition 4 states:

“The approved use shall be limited for a period of 12 months and the use shall immediately cease after the expiration of 12 months of this consent unless the approved works under DA471/99 dated 2 September 1999, have been completed in full compliance with all conditions under the consent to DA471/99. The approved use shall immediately cease should all conditions of this consent to DA201/03 not be fully complied with within six months from the date of this consent.”

3 The modification seeks to amend the condition by substituting 22 months for the 12 months time period in the first sentence of this condition. This has the effect of allowing the approved use to continue until 10 December 2005, as well as allowing the same time for all works required by DA471/99 to be completed. The amended condition is to read:

“The approved use shall be limited for a period of 22 months and the use shall immediately cease after the expiration of 22 months of this consent unless the approved works under DA471/99 dated 2 September 1999, have been completed in full compliance with all conditions under the consent to DA471/99. The approved use shall immediately cease should all conditions of this consent to DA201/03 not be fully complied with within six months from the date of this consent.”

4 Mr Tony Moody, a town planner, provided evidence for the council. His evidence contains an audit of the applicant’s compliance with the conditions of DA471/99 and DA201/03. Based on the number of non-compliances, Mr Moody states that he does not have confidence that the applicant would comply with the extended time periods sought in this application.

5 Mr Warren Gosling, a town planner, provided evidence for the applicant. He states that the extended time period was required because of differences of opinion in the applicant’s board of directors over the continuation of the operation at the site and problems with a caveat placed on the land. He further states that substantial works have already been carried out on the site and the extension of time will allow the completion of other necessary works.

6 Mr Hale SC for the applicant, submitted that the modification application only seeks to amend the timing that affects the works required under DA471/99. The applicant does not seek to amend the time to comply with the conditions imposed by DA201/03. For this reason, any matters that relate to DA201/03 are not relevant matters for these proceedings.

7 Mr Ayling SC for the respondent takes a different view. While accepting that there are no environmental consequences to the proposed amendment he submits that the two approvals are related and cannot be separated. He submits that the Court should take into consideration two recent reports provided by the applicant. These are a Fire and Life Safety Report and a Rehabilitation and Planning Works Report. He places some emphasis on the former report as it highlights an existing deficiency in the availability of fire hydrants.

8 As these reports are called up by DA201/03, Mr Hale submits that they are not relevant for the Court’s consideration of this application.

9 In balancing the competing submissions, I agree with the submissions of Mr Hale. While condition 4 is a condition imposed by DA201/03, the changes to the condition refer only to the specific requirements of DA471/99. Also, I am not convinced that the extension time until 10 October 2005 is inappropriate, as work has commenced on some of the outstanding requirements. I see no practical reason why the extension of the time should not be granted.

10 If Mr Moody’s audit of DA201/03 conditions is correct, and I did not understand there to be any dispute, the option is open for the council to pursue the other non-compliances through other means available in the Court, if they consider it appropriate.

11 In accepting Mr Hale’s submission, I share the concerns of Mr Ayling over the recently produced Fire and Life Safety Report. Even though it is not a matter appropriately addressed through these proceedings, it is clearly a matter that needs to be addressed by the council or in conjunction with the relevant authority as a matter of urgency.

12 For these reasons, condition 4 of DA201/03 is modified in the manner sought by the applicant.

13 The Orders of the Court are:

1) The appeal is upheld
2 ) Condition 4 of Development Application 201/03 is deleted and replaced by;
4. The approved use shall be limited for a period of 22 months and the use shall immediately cease after the expiration of 22 months of this consent unless the approved works under DA 471/99 dated 2nd December, 1999 have been completed in full compliance with all conditions under the consent to the DA 471/99. The approved use shall immediately cease should all the conditions of this Consent DA 201/03 not be fully complied within 16 months from the date of this consent.
3) The exhibits are returned with the exception of exhibits 1 and 2.
________________________
G T Brown
Commissioner of the Court
ljr