Mirvac Homes (NSW) Pty Limited v Warringah Council

[2001] NSWLEC 158

Land and Environment Court

of New South Wales

CITATION:	Mirvac Homes (NSW) Pty Limited v Warringah Council [2001] NSWLEC 158
PARTIES:	APPLICANT: Mirvac Homes (NSW) Pty Limited RESPONDENT: Warringah Council
FILE NUMBER(S):	10897 of 2000
CORAM:	Talbot J
KEY ISSUES:	Development Consent :- whether deferred commencement condition satisfies test of finality Section 56A appeal :- appeal upheld by consent
LEGISLATION CITED:	Land and Environment Court Act 1979 s 56A
CASES CITED:	Remath Investments No 6 Pty Ltd v Botany Bay City Council (No 2) (unreported, Land and Environment Court, NSW, Talbot J, No 10649 of 1996, 11 December 1996); Weal v Bathurst City Council & Anor (2000) 111 LGERA 181
DATES OF HEARING:	03/07/01
EX TEMPORE JUDGMENT DATE :	07/03/2001
LEGAL REPRESENTATIVES:	APPLICANT: Ms J L Ware (Solicitor) SOLICITORS: Coudert Brothers RESPONDENT: Mr N D Howie (Solicitor) SOLICITORS: Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No. 10897 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 3 July 2001

Mirvac Homes (NSW) Pty Limited
Applicant

v
Warringah Council

Respondent

REASONS FOR JUDGMENT


1. This is an appeal, by notice of motion dated 8 May 2001 from the decision of, and the orders made by, Commissioner Bly on 20 April 2001. The parties have presented argument in respect of the grounds for the appeal by council made pursuant to s 56A of the Land and Environment Court Act 1979 (“the Court Act”).

2. There is a degree of consensus between the parties. That is, at least to the extent of an agreement that the appeal should be allowed. On the basis of the Commissioner’s findings, in par 30 of his written judgment delivered on 20 April 2001, the parties initially requested that the Court delete deferred commencement conditions A(1)(c)(i) and (ii) and condition B(8) of the general conditions of consent imposed by the Commissioner and substitute alternative conditions.

3. The Court has not been satisfied, notwithstanding the agreement of the parties, that it should delete the conditions referred to and substitute them with alternative conditions in the form proposed by the parties or otherwise.

4. The Court is satisfied that the Commissioner clearly found, in par 30 of the judgment, that there was a requirement for a species impact statement (“SIS”). No SIS has been provided. The subsequent granting of the consent by the Commissioner did not include that requirement. The Commissioner recognised in his reasons that in the absence of a SIS development consent cannot be granted. The internal conflict means, and both parties agree, that the judgment cannot be allowed to stand.

5. The Commissioner made further findings in par 31 of the judgment. These findings are ultimately reflected in the deferred commencement conditions. They are, firstly, that the applicant was required to submit a bush regeneration and revegetation programme to council for its approval and secondly, that the owner of the land upon which the bush regeneration and revegetation programme is proposed enter into a deed with council to carry out that programme within a specified time. The deferred commencement conditions require that the terms of the deed “are to be to the reasonable satisfaction of Council”.

6. The Court is not satisfied that the deferred commencement conditions satisfy the test of finality enunciated by this Court in Remath Investments No 6 Pty Ltd v Botany Bay City Council (No 2) (unreported, Land and Environment Court, NSW, Talbot J, No 10649 of 1996, 11 December 1996), and subsequently confirmed by the Court of Appeal in Weal v Bathurst City Council & Anor (2000) 111 LGERA 181.

7. In the light of the Court’s disinclination to delete the conditions referred to in the proposed consent orders and to substitute fresh conditions on appeal, the parties are now satisfied for the matter to be referred back to Commissioner Bly for determination of the development application in accordance with these reasons and findings. In the Court’s opinion that is an appropriate course. The parties are confident that, notwithstanding the errors of law made by the Commissioner, the issues can nevertheless be resolved in accordance with established principle.

8. The Court makes the following orders:-

1. Appeal upheld
2. Matter remitted to Commissioner Bly for determination in accordance with the above findings.