Monovasios v Mid-Coast Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Monovasios v Mid-Coast Council [2016] NSWLEC 1283
Hearing dates:	6, 7, 8 June 2016; conditions 1 July 2016
Date of orders:	08 July 2016
Decision date:	08 July 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is dismissed. 2. Development Application DA269/2015 for a three storey motel comprising five motel units and a manager’s suite, with parking for six vehicles, at 10 Myall Street Pindimar, is refused. 3. The exhibits are returned except for exhibits 1, 20, A, B, G, J and N.
Catchwords:	DEVELOPMENT APPLICATION: Motel – Bushfire prone land – Asset Protection Zone –Vegetation clearing – Endangered Ecological Communities – Suitability of the site
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Land and Environment Court Act 1979 Native Vegetation Act 2003 Roads Act 1993 Rural Fires Act 1997 Threatened Species Conservation Act 2005 Rural Fires Regulation 2013 State Environmental Planning Policy No 71 – Coastal Protection Great Lakes Local Environmental Plan 2014
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Davis v Gosford City Council [2014] NSWCA 343 De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112
Texts Cited:	Planning for Bush Fire Protection (2006) NSW Rural Fire Service
Category:	Principal judgment
Parties:	Fotios Monovasios (Applicant) Mid-Coast Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Ms H Irish (Respondent)   Solicitors: Mr T Flaherty, Wilshire Webb Staunton Beattie (Applicant) Mr T Pickup, Local Government Legal (Respondent)
File Number(s):	2016/162981 (formerly 11113 of 2015)
Publication restriction:	No

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Great Lakes Shire Council (now Mid-Coast Council) of consent to Development Application DA269/2015 for a three storey motel comprising five motel units and a manager’s suite, with parking for six vehicles, at 10 Myall Street Pindimar (the site).

2. The site is located on the southern side of Myall Street, with a frontage of 20.115m and a side boundary of 72.42m, and with frontage on the southern boundary to Pindimar Bay, which is part of Port Stephens. The site has an area of 1,454sqm. There is an existing open shed and caravan on the site.

3. There are four separate vegetation community types occupying four bands across the site. From north to south, those communities are Flooded Gum Modified Tall Woodland (River Flat Eucalypt Forest on Coastal Floodplains) (RFEF), an area of approximately 30m in width from the front boundary; Mangrove Woodland, a band width of approximately 20m; Swamp Oak Floodplain Forest, a band width of approximately 15m; and Estuarine Mudflats/Mangrove Woodland, which is part of the body of the Port Stephens Estuary and is generally inundated by mean high water. The River-flat Eucalypt Forest on Coastal Floodplains and the Swamp Oak Floodplain Forest are listed as endangered ecological communities…