Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125

Land and Environment Court New South Wales

Medium Neutral Citation: Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125 Hearing dates: 02 November 2021 Decision date: 11 November 2021 Jurisdiction: Class 4 Before: Pain J Decision: See [36]-[38] of judgment Catchwords: PROCEDURE – finalisation of brief to experts to advise on whether need for remediation and revegetation in area where work conducted pursuant to development consent declared invalid Legislation Cited: Local Government Act 1992 (NSW) s 68 Uniform Civil Procedure Rules 2005 (NSW) r 31.23 Cases Cited: Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80 Category: Procedural rulings Parties: Michael Ryan (Applicant) Northern Regional Planning Panel (First Respondent) Lismore City Council (Second Respondent) Winten (No 12) Pty Ltd (Third Respondent) W A Sexton (Fourth Respondent) Glorbill Pty Ltd (Fifth Respondent) Representation: Counsel: A Oshlack, agent (Applicant) C Renner, solicitor (Third Respondent)

Solicitors: A Oshlack, agent (Applicant) Department of Planning (First Respondent) McCartney Young Lawyers (Second Respondent) Dentons (Third to Fifth Respondents) File Number(s): 2019/6908

Judgment 1. In Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 ("Ryan No 4") development consent 2017/270 issued to the Third Respondent Winten (No 12) Pty Ltd (Winten) by Lismore City Council (the Council) for a subdivision development at Lot 2 DP 1214953 and Lot 3 DP 808657, Lismore (the site) was found to be invalid. The issue of whether consequential orders requiring restoration of the site should be made remains outstanding for various reasons. Mr Al Oshlack appeared as agent for the Applicant Mr Michael Ryan. 2. The site is in an area known as the North Lismore Plateau. It is 70.95 ha (Lot 2 DP 1214953), 8.091 ha (Lot 3 DP 808657), excluding roads, and was divided into three precincts for the purposes of the subdivision. The invalid development consent approved a subdivision plan to create a total of 433 residential allotments, a commercial allotment, open space and areas for environmental management. Dunoon Road runs along the eastern boundary of an area identified as Precinct 1. 3. In Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80 ("Ryan No 6") I resolved that an engineer and an ecologist should have access to the site and required the parties to confer on an agreed brief. The Applicant was to provide details of the experts' identities and their qualifications to Winten. The experts Mr Hammond engineer and Mr Doyle ecologist have now been identified satisfactorily but the brief remains in contention as there is a dispute about which parts of the site should be reviewed, if at all, by them. 4. The areas subject to development works under the invalid development consent were Precinct 1, the haul road from Precinct 1 up a hill to an area on the plateau known as the borrow pit area, and the borrow pit area. Excavation of the borrow pit area for fill which was then placed on Precinct 1 occurred as part of the development consent declared invalid. 5. Winten has applied for and been granted a new development consent DA 5.2020.462.1 (the New DA) on 15 September 2021 by the Council for the subdivision of the area known as Precinct 1. 6. The Applicant accepts, appropriately, that there is no utility in making orders seeking remediation or restoration in relation to Precinct 1 and no access for any expert to this area is sought, but for one matter concerning the haul road I will discuss below.