Visionary Investment Group Pty Ltd v Wollongong City Council (No 2)

[2019] NSWLEC 1364

Land and Environment Court

New South Wales

Medium Neutral Citation:	Visionary Investment Group Pty Ltd v Wollongong City Council (No 2) [2019] NSWLEC 1364
Hearing dates:	20–23 November 2018; 12-13 December 2018; 6 February 2019; 22 July 2019
Date of orders:	06 August 2019
Decision date:	06 August 2019
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Consent is granted Development Application No. DA 2016/1019 as amended 22 August 2018 relating to the subdivision of 99 residential lots, 1 community title lot and one residue lot of a staged development to be delivered in three stages and associated works including category 1 remediation works, civil works, road upgrade, parks, open space, rainwater basins, earthworks and utilities at the land parcel comprising of Lot 1 Avondale Road and 520, 528, 539 and 571 Avondale Road, Avondale and bank stabilisation works on Lot 18 DP 3083, subject to the conditions set out in Annexure A. (3)   Development Consent No. DA-2009/1037/B is modified and amended as set out in Annexure B. (4)   The exhibits are returned except for Exhibits 1, 2, 3, 8, 17, 19, A, B, C, H, J, P, R, T, V, W, DD, JJ, KK, LL, MM, NN and OO.
Catchwords:	DEVELOPMENT APPLICATION – subdivision – community title – owner’s consent – golf course – contamination – streambank stabilisation – availability of water and wastewater infrastructure – assessment of off-site impacts – Grampian condition – modification of existing consent
Legislation Cited:	Biodiversity Conservation Act 2016 Byron Shire Local Environmental Plan 1988 Community Land Development Act 1989 Community Land Management Act 1989 Conveyancing Act 1919 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Fisheries Management Act 1994 Muswellbrook Shire Local Environmental Plan 2009 Natural Resources Access Regulator Act 2017 Rural Fires Act 1997 State Environmental Planning Policy No 55– Contamination of Land Sydney Water Act 1994 Threatened Species Conservation Act 1995 Water Management Act 2000 Wollongong Local Environmental Plan 2009
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Associated provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223 Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services Ltd (1997) 95 LGERA 86 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 British Railways Board v Secretary of State for the Environment and London Borough of Hounslow 1992 65 P. & C.R. 402 British Railways Boards v Secretary of State for the Environment and Others [1993] 3 PLR 125 Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399 Eastbrook Pastoral Pty Ltd v Muswellbrook Shire Council [2014] NSWLEC 1144 Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7 Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 S.C.(H. L.) 58 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Jones v Secretary of State for Wales and Ogwr Borough Council (1991) 61 P. & C.R. 238 McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24; [2004] FCAFC 190 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212 Narden Services Ltd v Secretary of State for Scotland 1993 SCLR 434 Newbury District Council v Secretary of State for the Environment [1980] 1 All ER 731 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and with Stoneco Pty Limited [2010] NSWLEC 48 Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 132 Scott v Wollongong City Council (1992) 75 LGRA 112 Serafina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 2009 Stokes v Waverley Council [2019] NSWLEC1137 Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234
Texts Cited:	2012 EPA Standard for Ground Gas Monitoring Guidelines for the Assessment and Management of Sites impacted by Hazardous Ground Gases Contamination Planning Guidelines SEPP55 – Remediation of Land Natural Resources Access Regulator 2018 Guidelines for Controlled Activities on Waterfront Land NSW DPI Policy and Guidelines for Fish Habitat Conservation and Management (2013) NSW RFS Planning for Bushfire Protection 2006 S Fairfull and G Witheridge, “Why do fish need to cross the road? Fish Passage Requirements for Waterway Crossings” (2003) NSW Fisheries Scottish Executive, Central Research Unit, The Use and Effectiveness of Planning Agreements, (2001) Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	Visionary Investment Group Pty Ltd (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: T Robertson SC (Applicant)   Solicitors: Mills Oakley (Applicant) J Reilly, Wollongong City Council (Respondent)
File Number(s):	2017/196133
Publication restriction:	No

Judgment

1. COMMISSIONER: In my judgment in Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234 published on 30 May 2019, I provided reasons why I was of a mind to uphold the appeal. At that time, there were considerable differences between the parties as to conditions. Attached to the judgment was a Schedule, in which for some of the conditions in dispute I ruled which of the alternatives I accepted. For the conditions which remained in dispute, I set a timetable for the parties to either reach an agreed position or, if this were not possible, to provide submissions making their respective cases.

2. When the matter resumed on 22 July 2019, agreement had been reached on a number of the outstanding conditions and submissions were provided on those which were still in contention.

3. In the course of the hearing, agreement was reached between the parties as to the form and wording of the remaining conditions in contention. The final conditions form Annexure A. The nature of the works for which consent will be granted is such that, pursuant to s 4.17(1)(b) of the Environmental Planning and Assessment Act 1979, the existing consent for the golf course (DA-2009/1037/B) is to be modified and amended in accordance with Annexure B.

4. The conditions of consent for DA 2016/1019 in Annexure A are to be read in conjunction for the modified and amended conditions of consent for DA-2009/1037/B in Annexure B.

5. Accordingly, the Court orders:

1. The appeal is upheld.

2. Consent is granted Development Application No. DA 2016/1019 as amended 22 August 2018 relating to the subdivision of 99 residential lots, 1 community title lot and one residue lot of a staged development to be delivered in three stages and associated works including category 1 remediation works, civil works, road upgrade, parks, open space, rainwater basins, earthworks and utilities at the land parcel comprising of Lot 1 Avondale Road and 520, 528, 539 and 571 Avondale Road, Avondale and bank stabilisation works on Lot 18 DP 3083, subject to the conditions set out in Annexure A.

3. Development Consent No. DA-2009/1037/B is modified and amended as set out in Annexure B.

4. The exhibits are returned except for Exhibits 1, 2, 3, 8, 17, 19, A, B, C, H, J, P, R, T, V, W, DD, JJ, KK, LL, MM, NN and OO.

…………………………

P Adam

Acting Commissioner of the Court

Annexure A (565 KB)

Annexure B (179 KB)

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Decision last updated: 06 August 2019