RVA Australia Pty Ltd v Sutherland Shire Council No. 2

[2017] NSWLEC 1449

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	RVA Australia Pty Ltd v Sutherland Shire Council No. 2 [2017] NSWLEC 1449
Hearing dates:	21 August 2017
Date of orders:	22 August 2017
Decision date:	22 August 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1) The applicant has until 30 September 2017 to comply with the directions as set out in paragraph 120 of the judgment of the Court handed down on 30 March 2017. (2) The Respondent is to file and serve draft conditions of consent by 30 August 2017. (3) The Applicant is to file and serve any draft conditions of consent in reply by 6 September 2017. (4) If the Applicant files and serves draft conditions in reply then the parties’ relevant experts are to confer (within each discipline) and prepare joint reports (for each discipline) in relation to those conditions that are in dispute. Any such joint report(s) are to be filed and served by 20 September 2017. (5) Each of the parties are to file and serve written submissions in relation to any disputed conditions by 30 September 2017. (6) The parties have liberty to restore on 3 working days’ notice. (7) Exhibits W and V are returned.
Catchwords:	PRACTICE AND PROCEDURE: slippage in the timetable to comply with directions in accordance with reasons for judgment delivered by the Court on 30 March 2017.
Legislation Cited:	Nil
Cases Cited:	RVA Australia Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1161
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	RVA Australia Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Ms S. Duggan SC (Applicant) Ms J. Reid barrister (Respondent)   Solicitors: Mills Oakley (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2016/155813 & 2016/155592
Publication restriction:	No

Judgment

1. Judgment was delivered on 30 March 2017 (RVA Australia Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1161) with directions made for both parties in accordance with the reasons for judgment and the applicant was given a maximum of three calendar months until 30 June 2017 to comply with the directions.

2. The applicant seeks an extension of time until 30 September 2017 to comply with the directions and the Council opposes the granting of an extension of time, because the Council continues to incur costs in relation to the matter and the issue of legal access to the site was raised by Council as far back as 2015. At this stage, the outcome of the notification of the National Parks and Wildlife Service (NPWS) final review of environmental factors (REF) in relation to access through the Royal National Park remains unknown. It is the Council’s view that the dismissal of the appeals would allow the applicant to obtain the necessary documentation and approvals within an achievable timeframe and then lodge a fresh development application to Council. The Council could then use Court’s judgment for guidance in assessing a future application.

3. The applicant has completed the following items required by the Court’s directions:

• The IPA has been adjusted and an updated plan of the IPA and FRA is included in the Plan of Management dated May 2017. The dimensions on the site plan have been corrected. The kitchen and dining tent have been relocated and shown on the site plan. According to the applicant, the plans were completed on 1 June 2017.

• The plans of the caretaker’s accommodation and refuge building and kitchen and dining tent and the accessible tent have been amended as required and were filed on 3 May 2017.

• The Plan of Management has been amended and was filed on 21 June 2017. The Weed Management Plan (WMP) for the ongoing weeding of the site was, according to the applicant, completed on 1 June 2017.

4. The following items remain outstanding:

• Legal access to the site has not yet been obtained, nor has a right to access and manage the land known as ‘Sussex Street’ been obtained for the purpose of creating and maintaining an inner protection area (IPA), to comply with the BFSA condition 1.

• The applicant has provided a proposed location for the compost room to the Council and agreement has not yet been reached, according to the applicant. The compost room is required to be shown on the plans.

• The applicant has provided a proposed condition to require a satellite telephone be kept on site to the Council and agreement has not yet been reached, according to the applicant. This requirement is to be imposed by condition and noted in section 11 of the Bush Fire Evacuation Plan.

5. Access to the site is proposed over the Royal National Park and over the ‘Sussex Street’ land, owned by the Estate of the Late Edith Lucy Wolsetenholme.

6. To obtain a right of access across the Royal National Park, NPWS must undertake a final review of environmental factors (REF) relating to the proposed access. The draft REF was submitted to NPWS on 9 February 2017. The final REF was submitted to NPWS on 10 April 2017 and was placed on public exhibition until 15 June 2017. The applicant anticipates that the final REF will be determined before 30 September 2017.

7. The parties agree that there is an implied right of carriageway over the Sussex Street land. The applicant is presently working towards acquiring the land or obtaining an easement over it for the purpose of creating and maintaining an IPA on the relevant part of that land.

8. I am satisfied on the basis of all of the evidence before me that it is appropriate to the grant the applicant a short extension of time until 30 September 2017 to comply with the outstanding directions in accordance with reasons for judgment delivered by the Court on 30 March 2017, because the applicant has been consistently working towards obtaining the necessary legal access to the site and because the Council has contributed to the slippage in the timetable in relation to some of the outstanding items.

9. Final orders will be made in chambers.

Orders

1. The applicant has until 30 September 2017 to comply with the directions as set out in paragraph 120 of the judgment of the Court handed down on 30 March 2017.

2. The Respondent is to file and serve draft conditions of consent by 30 August 2017.

3. The Applicant is to file and serve any draft conditions of consent in reply by 6 September 2017.

4. If the Applicant files and serves draft conditions in reply then the parties’ relevant experts are to confer (within each discipline) and prepare joint reports (for each discipline) in relation to those conditions that are in dispute. Any such joint report(s) are to be filed and served by 20 September 2017.

5. Each of the parties are to file and serve written submissions in relation to any disputed conditions by 30 September 2017.

6. The parties have liberty to restore on 3 working days’ notice.

7. Exhibits W and V are returned.

____________

Susan O’Neill

Commissioner of the Court

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Amendments

22 August 2017 - Typographical error

Decision last updated: 22 August 2017