Stannards Marine Pty Ltd v North Sydney Council (No 2)

[2022] NSWLEC 112

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Stannards Marine Pty Ltd v North Sydney Council (No 2) [2022] NSWLEC 112

Hearing dates:

On the papers

Date of orders:

05 September 2022

Decision date:

05 September 2022

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:

(1)   The appeal in proceedings 2022/36839 is upheld.

(2)   Development application No 456/21 for the installation and use of a Relocatable Shed and an Air Quality Pollution Control System at 6 John Street, McMahons Point is determined by the grant of development consent subject to the conditions in Annexure A.

(3)   The exhibits other than exhibits D, G and N (containing the approved drawings and documentation referred to in condition A1), are returned to the party who tendered them.

Catchwords:

APPEAL – development application – relocatable shed – air quality pollution control system – conditions of consent

Cases Cited:

Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99

Category:

Principal judgment

Parties:

Stannards Marine Pty Ltd (Applicant)
North Sydney Council (Respondent)
Friends of Sydney Harbour (Objector 1)
The Owners of Strata Plan 63626 (Objector 2)
Dr Ronald Blombery (Objector 3)
The Owners of Strata Plan 48674 (Objector 4)
The Owners of Strata Plan 48675 (Objector 5)
Waverton Public Lands and Waters Protection Association Inc (Objector 6)
Mr Michael Stevens (Objector 7)

Representation:

Counsel:
Mr A Galasso SC with Ms J Reid (Applicant)
Mr T To (Respondent)
Ms L Sims (Objectors 2, 3, 4, 5, 7)
Mr J Molyneux (agent) (Objector 1)
Mr B Donald (agent) (Objector 6)

Solicitors:
Alice Spizzo Advisory (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2021/63136 & 2022/36839

Publication restriction:

Nil

Judgment

1. On 8 August 2022, I delivered judgment in the two appeals by Stannards Marine Pty Ltd (Stannards) against the actual or deemed refusal of North Sydney Council (the Council) of two development applications: Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99.

2. One development application sought development consent for the mooring and use of a floating dry dock in Berrys Bay. I determined that that development application should be refused. The other development application was for the installation and use of a Relocatable Shed and Air Quality Pollution Control System. I determined that that application was approvable, subject to settling appropriate conditions of consent.

3. I directed the parties to confer and if possible agree on conditions of consent, reflecting the findings in my judgment, but if agreement were not to be possible, the parties should file competing versions of the conditions on which they have not agreed.

4. The parties have now filed their conditions of consent. For the most part, the parties have been able to agree on the appropriate conditions of consent. The parties disagreeing on three conditions. They have supplied their competing versions of these conditions. The Court’s task is to resolve this disagreement and determine the appropriate wording of the conditions. I will deal with each disputed condition.

Terminology

5. The terminology section of the consent defines various terms used in the consent. One of the defined terms is “Approved Activities”. These are defined to mean “the lawful boatyard works, activities and operations authorised by the 1990 Consent and the Part 5 Approval”. The Council suggested that this definition be expanded to say “in the locations identified in Annexure C”. Annexure C provided a table summarising the various works, activities and operations approved by the 1990 Consent and the Part 5 Approval. Stannards opposed inclusion of this additional wording and Annexure C as it submitted the 1990 Consent and Part 5 Approval should speak for themselves as to the approved works, activities and operations on the site. I agree with Stannards. The additional wording and Annexure C should be deleted. This results in the relettering of the annexures to the consent, with the current Annexure D becoming Annexure C.

Condition AA5

6. Condition AA5 was one of many deferred commencement conditions proposed by the Council. I found in the judgment that many of the suggested deferred commencement conditions were inappropriate and should be deleted altogether or moved to be operational conditions. I did not comment on condition AA5. This condition requires both architectural plans and a plan of management to be provided to the satisfaction of the Council, which demonstrate that installation and operation of the Air Quality Pollution Control System and the location of the Relocatable Shed within the Wash Bay will not impede or affect the use of the Wash Bay for its approved purpose under the 1990 Consent.

7. This outcome was not in contest, both Stannards and the Council agreeing that the installation and operation of the Air Quality Pollution Control System and the location of the Relocatable Shed in the area of the Wash Bay should not impede or affect the use of the Wash Bay. The issue to which deferred commencement condition AA5 was directed was that the architectural plans were not clear in demonstrating this lack of adverse effect.

8. Stannards have proposed that condition AA5 should be amended to delete reference to the architectural plans, leaving reference only to a plan of management that would demonstrate this lack of adverse effect.

9. The Council submitted that the judgment does not indicate that reference to the architectural plans should be deleted. The evidence demonstrated the potential for conflict in the area of the Wash Bay with storage of the adverse, installation of the Air Quality Pollution Control System, and the existing water treatment plant and Wash Bay. The Council submitted the architectural plans should be revised to demonstrate how this potential conflict can be satisfactorily resolved.

10. I agree with the Council that the architectural plans should be revised to demonstrate that neither the Air Quality Pollution Control System nor the Relocatable Shed will impede or affect the use of the Wash Bay. That is the agreed position of the parties; it needs to be demonstrated on the architectural plans.

11. The deletion of many of the deferred commencement conditions results in condition AA5 being renumbered as condition AA4.

Condition A1

12. Condition A1 requires the development to be carried out in accordance with the drawings and documentation listed in the table to the condition. One of the documents listed is the Statement of Environmental Effects and Heritage Impact Statement dated 22 December 2021, prepared by Hamptons Property Services. Although the Council included this document in the table to the condition, it noted that the development proposed in the Statement of Environmental Effects was inconsistent with the development application for the Relocatable Shed as amended at the hearing with leave of the Court.

13. The Council noted in particular that Stannards had amended the development application to fix the location of the Relocatable Shed in two positions only, the use position and the non-use position, shown on the revised architectural plans.

14. The question that arises is whether there is utility in these circumstances in listing the Statement of Environment Effects as one of the documents in accordance with which the development must be carried out. I do not consider there is utility in doing so. The revised architectural plans listed in the table now specify the design and locations of the Relocatable Shed. Conditions of consent regulate the use of the Relocatable Shed. There is nothing stated in the Statement of Environment Effects that adds to what is stated in the conditions of consent and the drawings and other documentation referred to in the conditions. Inclusion of the Statement of Environmental Effects will lead to confusion as to the development to be carried out and the documentation in accordance with which the development is to be carried out.

The conditions of consent otherwise

15. I have reviewed the agreed conditions otherwise to check that they have been revised to reflect the findings in the judgment. I have slightly adjusted the wording of some conditions. The deletion and insertion of conditions had caused the numbers of the conditions to no longer be sequential. I have renumbered the conditions to correct this.

Grant of consent

16. Orders now can be made granting development consent to the Relocatable Shed and Air Quality Pollution Control System.

17. The Court orders:

1. The appeal in proceedings 2022/36839 is upheld.

2. Development application No 456/21 for the installation and use of a Relocatable Shed and an Air Quality Pollution Control System at 6 John Street, McMahons Point is determined by the grant of development consent subject to the conditions in Annexure A.

3. The exhibits other than exhibits D, G and N (containing the approved drawings and documentation referred to in condition A1), are returned to the party who tendered them.

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Stannards Marine Pty Ltd v North Sydney Council (No 2) Annexure A (2316986, pdf)

Amendments

06 September 2022 - Pursuant to rule 36.17 of the UCPR (the slip rule), by consent of the Parties, Annexure A, being the Conditions of Consent to the orders of 5 September 2022, is amended to correct typographical errors.

Decision last updated: 06 September 2022