Vic Vellar Nominees Pty Limited v Wollongong City Council

[2011] NSWLEC 1143

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vic Vellar Nominees Pty Limited v Wollongong City Council [2011] NSWLEC 1143
Hearing dates:	30 May 2011
Decision date:	01 June 2011
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld
Catchwords:	Consent orders - Modification of a development consent to regularise the locations of approved structures; conditions imposed to minimise impacts of bushfire protection measures on flora and fauna
Legislation Cited:	Environmental Planning & Assessment Act 1979 Wollongong Local Environmental Plan 2009
Texts Cited:	Planning for Bushfire Protection 2006
Category:	Principal judgment
Parties:	Vic Vellar Nominees Pty Limited (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel Mr N Eastman (Applicant) Solicitors Wiltshire Webb Staunton Beattie (Applicant) Mr C Zoppo (Respondent) Sparke Helmore Lawyers
File Number(s):	10384 of 2010

Judgment

1. This is an appeal pursuant to s 96(6) of the Environmental Planning & Assessment Act 1979 (the Act) against the deemed refusal by Wollongong City Council (the council) of Modification Application No. DA - 119/772/C of Development Consent No 92/772 and Building Approval No B979/94 relating to Lot 21 DP 838638, 7 Glenlea Street Corrimal.

1. The modification seeks to amend the approved location of two approved structures to reflect their as-built location as shown in plans prepared by Masters & Associates Pty Ltd - reference 37691 - sheets 1 and 2 dated 15 March 2010.

1. The modification application was lodged on 31 March 2010. The respondent requested additional information with respect to:

• A revised bushfire assessment
• An arborist report as defined in DCP 2009
• A flora and fauna assessment to assess the impact on threatened species resulting from the proposed removal of trees and native vegetation from the asset protection zones.

1. On 24 May 2010 the applicant lodged the Class 1 Application appealing the deemed refusal of the modification application.

1. The council's contentions are that the Modification Application does not demonstrate that the as built location will not unreasonably impact the surrounding escarpment environment. In particular, an updated bushfire assessment pursuant to s 79BA of the Act has not been lodged; and, the locality is identified as potentially containing Endangered Ecological Communities (EECs) which requires an assessment under s 5A of the Act depending on the amount of clearing required to meet the bushfire control requirements. As there were two objections to the application, the council contends it is not in the public interest.

1. The site is a 20.3 ha parcel of land zoned predominantly E2 - Environmental Conservation under the Wollongong Local Environmental Plan 2009 (WLEP). The area on which the existing structures are located is zoned E3 - Environmental Management.

1. There are two partially constructed two-storey buildings on the site and the area immediately surrounding them has been cleared. The remainder of the site is heavily vegetated with native vegetation typical of the Illawarra escarpment as well as some weed growth.

1. Subsequent to the lodging of the Class 1 appeal, the applicant submitted additional information that has now satisfied council's contentions with respect to bushfire and ecological issues.

1. Clause 7.8(3) of the WLEP relates to the Illawarra Escarpment area conservation. It states:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) will be located so as to minimise any adverse impact on the natural features and environment of the Illawarra Escapement, and

(b) will incorporate on the land, conservation and rehabilitation measures to enhance the Illawarra Escarpment.

1. Mr S House of Ecological prepared a Bushfire Assessment as well as Flora & Fauna Report for the applicant. The Bushfire assessment determines that the measures described in the report conform with Planning for Bushfire Protection 2006 (PBP) and provide acceptable solutions for Asset Protection Zones (APZs), construction standards, access and water supply. The Flora & Fauna report concludes that the implementation of the required APZs and the construction of a passing bay on the access road are unlikely to result in a significant impact on the threatened species whose habitat may be impacted and therefore a Species Impact Statement is not required.

1. Mr G Leonard, Environmental Strategy Officer for Wollongong City Council, and Mr House prepared a joint statement. The experts agree that, subject to the development being undertaken in accordance with their suggested amendments to the without prejudice conditions of consent, the development will not unreasonably impact on the surrounding environment. They agree that a marked up aerial photograph showing the location of the APZs should be added to the Bushfire Assessment to meet the requirements of s 79BA of the Act. They also agree that no EECs will be impacted however the preparation and implementation of an Environmental Management Plan is required.

1. The hearing commenced on site with an inspection of the immediate vicinity of the structures. Mr House indicated the extent of the proposed APZs. It was noted that the area had been cleared in the past and the mid storey was largely regrowth of trees and some weeds species. Mr House stated that no mature trees needed to be removed and, that in clearing the undergrowth to required extent, all female Allocasuarina torulosa trees would be retained because of their potential use by Glossy Black Cockatoos.

1. Following the provision of the additional material by the applicant, the council is now satisfied that its contentions relating to bushfire assessment and impacts on flora and fauna are satisfied. With respect to the public interest, there were two written objections. One objection related to the potential impact on flora and fauna and the other appears to relate to the history of the development and not to the contentions. No objectors attended the hearing.

1. Leave was given at the hearing to agree to the matter being dealt with by Consent Orders. The conditions were discussed and some suggestions made in relation to the requirements for a Tree Management Plan to be incorporated into the Environmental Management Plan.

1. I am satisfied that the council has properly assessed the application against s 79C and other relevant sections of the Act, the relevant clauses of the WLEP and PBP 2006. I am satisfied that the proposal meets the requirements of cl 7.8(3) of the WLEP. I am also satisfied that the proposed conditions address the concerns of one of the objectors. It would appear that the concerns of the other objector are broad in their nature and of no direct relevance to the matter now before the Court.

1. There being no reasons why the Consent Orders should not be made, the Orders of the Court, by consent, are:

(1)   The appeal is upheld.

(2)   Development Consent No. 92/772 and Building Approval No. B979/94 dated 23 August 1994 are modified pursuant to s 96 of the Environmental Planning & Assessment Act 1979 in accordance with Modification Application No. DA-1992/772/C lodged on 31 March 2010, the plans prepared by Masters & Associates Pty Ltd - reference 37691 - sheets 1 and 2 dated 15 March 2010, and with the conditions of consent in Annexure A.

(3)   Exhibit 3 is returned, all other exhibits are retained.

J Fakes

Commissioner of the Court

ANNEXURE A

Decision last updated: 03 June 2011