S J Connelly Pty Ltd v Byron Shire Council (No 2)

[2009] NSWLEC 1168

Land and Environment Court

of New South Wales

CITATION:

S J Connelly Pty Ltd (No 2) v Byron Shire Council [2009] NSWLEC 1168

PARTIES:

APPLICANT
S J Connelly Pty Ltd

RESPONDENT
Byron Shire Council

FILE NUMBER(S):

10868 of 2008

CORAM:

Hussey C - Taylor C

KEY ISSUES:

APPEAL :- Notice of Motion to amend the application by way of revision of some of the lot boundaries

LEGISLATION CITED:

Land and Environment Court Act

CASES CITED:

Radray Constructions Pty Limited v Hornsby Council 2006 NSWLEC 155

DATES OF HEARING:

14 April 2009

EX TEMPORE JUDGMENT DATE:

14 April 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti (SC)
SOLICITOR
McCartney Young Lawyers

RESPONDENT
Mr A Seton (Solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C
Taylor C

14 April 2009

10868 of 2008 S J Connelly Pty Ltd v Byron Shire Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT - On Notice of Motion

1 The final determination of the Appeal No 10868 of 2008 was stayed to allow the parties the opportunity to make limited further submissions in regard to the amenity issues arising from the proposed extensive retaining walls at the interface of the residential development and the creek system. Consequently the applicant lodged a Notice of Motion to amend the application by way of revision of some of the lot boundaries, which it considers responds to the concerns raised by the Court but not originally raised by council.

2 The council opposes this Notice of Motion because it considers the amendments represent a significant change to the development to the extent that the essence of the development is changed, necessitating lodgement of a fresh application.

3 Also, further notification is required along with detailed reassessment of hydrological and planning assessments. The amended proposal would also require referral to the New South Wales Fire Brigade considering that this is an integrated development.

4 In considering the opposing submissions on the Notice of Motion, the Court is mindful of its responsibilities under s 22 of the Land and Environment Court Act that proceedings be finalised in a just, quick and cheap manner, and by avoiding a multiplicity of proceedings.

5 In this matter the issue of the interface impacts was raised by the Court and the applicant’s response is to amend the layout by effectively reducing the lot yield by 3 lots, i.e. from 17 lots to 14. Consequently, the critical interface boundary is shifted away from the creek and the extensive 2-metre high retaining wall is removed. This amendment also maintains the critical design flood levels estimated by the generally accepted 2007 modelling.

6 The council’s submissions are that the concept of the development has also changed because the proposed community title form has been changed to a conventional subdivision, which then incorporates new public roads that comply with council’s DCP controls. Again, this supports council’s position that a fresh application should be made and the current application refused.

7 However, these amendments generally respond to the concerns previously raised by council. They improve the amenity impacts and allow for servicing of the lots in a more conventional manner as required by council. The revised layout also provides for public access to the adjoining public reserve land, as requested by council.

8 Having considered the submissions, the Court considers that the proposed amendments are responsive to the outstanding concerns raised in the Court findings. Also, these amendments still relate to the residential subdivision of the land accessed by a similar but now more conventional road system. Importantly, the amendments reduce the number of lots and substantially eliminate the high retaining wall proposed at the interface of the creek system whilst at the same time maintaining the critical flood levels.

9 Under these circumstances, the Court considers the amendments maintain the essence of the original development application and as such satisfy the test dealt with by her Honour Justice Jagot in Radray Constructions Pty Limited v Hornsby Council 2006 NSWLEC 155 where at paragraph 17 she said that,

“The proposed development nevertheless remains a self care seniors living development of twenty-two units on the land at 15 Eyles Avenue and 15 Anthony Avenue, Epping, with ancillary based parking, substantial works to the creek and landscaping. The essence of the development thus remains the same. The amendments or variations, although creating a changed development, have not converted the application into an original application. I do not consider the changed development depicted in the amended plans, having regard to the particular circumstances of this case, fall outside the scope of cl 55”.

10 Therefore the Court considers that this application satisfies the requirements of cl 55 and the EPA regulations 2000 for amendment of the application.

11 In determining this Notice of Motion the Court also notes the applicant’s undertaking in terms of costs with an agreement to pay the reasonable costs of the respondent on the party/party basis of:

(1) assessment in the amended application,
(2) re-advertising application of the application, and
(3) the further hearing of the proceedings.

12 In the ultimate, the Court considers that the previously identified further submissions can be made on a limited basis because the primary flood modelling issue has been determined. The respective engineers should be able to readily confer and identify any problems arising from the amended subdivision layout at the interface, and this should not involve any substantial remodelling.

13 Likewise the other engineers can confer to assess any impacts of the relatively minor amendments to the access roads, which seem to address the previously expressed council concerns based on the Court’s understanding of the site and controls. The Court can then finally determine any matters still outstanding.

14 Insofar as the amendments require re-notification, whilst this can incur some delays, nevertheless the applicant has agreed to cover the associated costs. Accordingly, the Court considers that taking into account the resources expended to date, then the final determination of this matter by the Court is consistent with its obligations under cl 22 of the Land and Environment Court Act. The Court also considers that the public interest is well served by allowing this Notice of Motion to amend the application to deal with an issue raised by the Court and intends to make an appropriate order.

15 In accordance with the outcome of this order, the Court would now like to take the opportunity of some case management of the remaining heads of consideration, to save time so that the matter can proceed expeditiously.

16 Consequently, the Directions are:

1) The applicant is to file and serve the amended plans and supplementary drawings including those relating to the storm water treatment ponds.

2) Experts to consider the effect of the bio-swales and if these will have any deleterious impacts on the adjoining EEC. Given that the purpose of the bio-swale is to filter and remove nutrients, is there a need to have a management program to harvest the vegetation to maximise ongoing nutrient uptake and removal? We note that there are appropriate documents and publications providing specific guidance on the use of different wetland macrophytes for specific nutrient removal requirements.

3) Experts to consider the impact of the proposed amendments on the catchment’s hydrology and flood impacts using the currently available flood modelling data and reports as presented in the exhibits to the Court. The experts should also consider the impacts of flooding on the new road layout and any associated risks.
4) Experts to consider and assess if and how the proposed amendments relate to the relevant DCPs.

5) The experts are to consider and define precisely what is the tolerance or error of the Tuflow model output and whether the results shown in Figure 4 of exhibit ‘NOM A’ are within that range. It would also be helpful to consider and inform the Court on the question of whether the effects of the proposed development as shown in Figure 4 are statistically significant and measurable to a degree of reliability.

6) Experts to determine if there is to be fill on the margins of the site as suggested by Mr Seeton. If so, will the fill have any deleterious effects on flooding at the site?

7) A joint engineers report is required to cover the revised road system and terms of access.

8) Any town planning issues arising from the amended development are to be dealt with in an expert town planning report.

9) The parties are to serve agreed conditions of consent along with the above items by 21st April 2009.

10) Parties to approach the Registrar by April 30th to get a date to complete the matter .

Court Orders

17 The Court orders:

1 The application to amend the proposal in accordance with Drawing Nos 0438/1000A, 0438/1001, 0438/1002 is allowed.

___________________ ___________________

R Hussey M Taylor
Commissioner of the Court Commissioner of the Court
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