Nessdee Pty Limited v Orange City Council (No 2)

[2017] NSWLEC 182

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nessdee Pty Limited v Orange City Council (No 2) [2017] NSWLEC 182

Hearing dates:

15–18 August, 3 and 6–7 November and 19 December 2017

Date of orders:

19 December 2017

Decision date:

19 December 2017

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:
(1) The applicant is granted leave to amend its development application for a heliport to be as described in the plans and documents specified in condition 1 of the development consent in Attachment A.
(2) The applicant is to pay the costs of the first respondent that are thrown away as a result of amending the development application.
(3) The appeal is upheld.
(4) Development consent is granted to development application no. 324/2015(1) for use as a heliport together with ancillary elements including pilot accommodation, classroom based pilot training, refuelling arrangements and extension to the existing hangar and office at 4898 Mitchell Highway, Orange (in Lot 1 of DP90167) on the conditions in Attachment A.

Catchwords:

APPEAL – heliport – amendment of development application – order for payment of costs thrown away – appeal upheld – development consent granted on conditions

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 97B(2)

Cases Cited:

Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158

Category:

Principal judgment

Parties:

Nessdee Pty Limited (Applicant)
Orange City Council (First Respondent)
Mr Gavin Alston (Second Respondent)
Ms Esme Alston (Third Respondent)

Representation:

Counsel:
Mr C McEwen SC and Mr M Staunton (Applicant)
Mr P Clay SC and Ms J Reid (First Respondent)

 

Ms B Scott as Agent for the Second and Third Respondents

  Solicitors:
Cheney Suthers Lawyers (Applicant)
Crennan Legal Pty Ltd (First Respondent)

File Number(s):

2017/70619

Publication restriction:

Nil

Judgment

1. On 28 November 2017, I gave judgment indicating that the proposed heliport, as modified, was acceptable and should be approved on conditions, including compliance with revised plans of management: Nessdee Pty Ltd v Orange City Council [2017] NSWLEC 158. I directed that the plans of management and draft conditions of consent be revised in accordance with my reasons for judgment. I adjourned the matter to today to consider the revised documents and, if acceptable, grant consent.

2. The revised plans, plans of management and conditions of consent have now been provided and admitted into evidence. For identification purposes, these new documents are: three sets of plans (Exhibit S), being plans prepared by Designs@M dated October 2015, Masterplan prepared by Geolyse dated 18 December 2017, and stormwater management plan and erosion and sedimentation control plan prepared by Geolyse dated 5 December 2017; Plan of Management version 1.9 dated 18 December 2017 prepared by Geolyse (Exhibit T); Stormwater Management Report prepared by Geolyse dated December 2017 (Exhibit W) and the final conditions of consent (Exhibit V). They reflect my reasons for judgment and are acceptable. Development consent can now be granted.

3. Because the proposed development was modified throughout the hearing, and to reflect the rulings in my judgment, leave needs to formally be granted to the applicant to amend its development application to make these modifications. As all of the amendments, viewed together, cannot be considered to be minor, the Court must make an order under s 97B(2) of the Environmental Planning and Assessment Act 1979 that the applicant pay the costs of the respondent consent authority that are thrown away as a result of amending the development application.

4. The Court orders:

1. The applicant is granted leave to amend its development application for a heliport to be as described in the plans and documents specified in condition 1 of the development consent in Attachment A.

2. The applicant is to pay the costs of the first respondent that are thrown away as a result of amending the development application.

3. The appeal is upheld.

4. Development consent is granted to development application no. 324/2015(1) for use as a heliport together with ancillary elements including pilot accommodation, classroom based pilot training, refuelling arrangements and extension to the existing hangar and office at 4898 Mitchell Highway, Orange (in Lot 1 of DP90167) on the conditions in Attachment A.

**********

ATTACHMENT A - Conditions of Consent - Nessdee Pty Ltd v Orange City Council (No 2) appeal 70619 of 2017 (322 KB, pdf)

Annexure A to Conditions of Consent - Plan of Management - Appeal No 70619 of 2017 (19.7 MB, zip)

Annexure B to Conditions of Consent - EPA General Terms of Approval - Appeal No 70619 of 2017 (7.76 MB, pdf)

Decision last updated: 19 December 2017