Wallace v Central Coast Council

[2022] NSWLEC 1312

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wallace v Central Coast Council [2022] NSWLEC 1312

Hearing dates:

09 June 2022

Date of orders:

09 June 2022

Decision date:

15 June 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [7]

Catchwords:

NOTICE OF MOTION – application to rely on documents

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.15(3)

Environmental Planning Assessment Regulation 2000, cl 55

Rural Fires Act 1997, s100B

Category:

Procedural rulings

Parties:

Colin Wallace (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
J Doyle (Applicant)
H Irish (Respondent)

Solicitors:
Fox Legal Australia Pty Ltd (Applicant)
MBM Legal + Conveyancing (Respondent)

File Number(s):

2021/51735

Publication restriction:

No

Judgment

1. COMMISSIONER: By notice of motion, the Applicant seeks leave to rely on further documents and reports, prepared in response to matters that had arisen during the course of the appeal.

2. The appeal concerns the Respondent’s refusal of the Applicant’s development application for the subdivision of land, demolition and associated works, at Warnervale.

3. An affidavit accompanying the notice of motion from Mr Colin Wallace, dated 31 May 2022, which the Applicant reads in the proceedings, confirms that the Applicant’s further documents and reports have sought to be responsive to matters that have arisen in the proceedings including bushfire and biodiversity related contentions between the Parties.

4. The Applicant’s further documents make the following changes to the Applicant’s development application to address certain of the remaining contentions within the Respondent’s further amended statement of facts and contentions filed on 28 March 2022:

1. increase the road reserve on proposed lot 25 tp 105m in width and dedicate it as a public road;

2. provide a central median island to prevent right hand movements out of the road reserve on proposed lot 25;

3. increase perimeter road 1 so that it would have a width of 8m carriage way kerb to kerb;

4. provide a wider turning bay to adopt requirements of a certificate issue by the NSW Rural Fire Service on 25 May 2022 pursuant to s 100B of the Rural Fires Act 1997;

5. The Applicant also seeks to rely on certain consequential changes made to its landscape plan and its Biodiversity Development Assessment Report (BDAR).

6. More specifically, the Applicant seeks leave to reply upon:

1. the following amended plans and other documents in the proceedings:

1. concept subdivision plan revision M, Job code SUB02;

2. concept landscape plan issue F, dated 30 May 2022, prepared by Conus Landscaping and Architecture;

2. the following further documents:

1. updated BDAR, dated 24 May 2022, prepared by Cumberland Ecology; and

2. bushfire report, dated April 2022, prepared by Clarke and Dowdle;

7. The Respondent confirmed that it has accepted late service of the notice of motion and submits that:

1. it does not oppose the grant of leave for the Applicant to rely on the documents and reports identified above (at [6]) in the proceedings; and

2. the Applicant should pay its costs thrown away in relation to dealing with the Applicant’s amended plans, pursuant to s 8.15(3) of the EP&A Act.

8. The Applicant has confirmed that it would not oppose the making of an order as sought by the Respondent in relation to its payment of costs thrown away.

9. The Court notes that:

1. Central Coast Council, as the relevant consent authority, agrees under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the application for development consent to rely on the plans and documents identified above (at [6]).

2. the Applicant has filed the plans and documents identified above (at [6]) with the Court on 31 May 2022.

10. The Court orders:

1. the Court grants the Applicant’s request for leave to rely upon the plans and documents identified above (at [6]) in the proceedings;

2. the Parties are to lodge the amendment of the development application on the NSW Planning Portal by 4pm, 16 June 2022 and notify the Court after it has been lodged;

3. the Applicant is to pay the Respondent’s costs thrown away in dealing its amended plans and other documents, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1987.

……………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 16 June 2022