Land and Environment Court of New South Wales CITATION : Tier Consulting Group Pty Ltd v Blue Mountains City Council [2000] NSWLEC 176 APPLICANT PARTIES : Tier Consulting Group Pty Ltd RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 10589 of 1997 CORAM: Sheahan J KEY ISSUES: Development Consent :- modification of conditions - consent orders - objectors - substantially the same development LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 20/07/2000 EX TEMPORE 07/20/2000 JUDGMENT DATE : APPLICANT Solicitors Pike Pike & Fenwick RESPONDENT LEGAL REPRESENTATIVES: Barrister Mr P Larkin Solicitors McPhee Kelshaw JUDGMENT: IN THE LAND AND Matter No: 10589 of 1997 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 20 July 2000 TIER CONSULTING GROUP PTY LIMITED Applicant v BLUE MOUNTAINS CITY COUNCIL Respondent JUDGMENT 1. In a judgment delivered on 16 April 1998, now reported at 99 LGERA 31, I granted a deferred commencement consent, on very stringent conditions, to a development, which was referred to during the hearing as " Cox's Rest Ecotourism Retreat ", and which I described in my judgment and the conditions as " an environmental education facility and holiday cabins ". 2. The proposal as it then stood was described at length in the judgment (see pp 35-37 and 42-44) and that detail need not be repeated. Suffice to say that I approved it on the basis that it was, if you like, a " dual use " - the cabins were to be operational only in association with the education facility - and the conditions were framed accordingly (see pp 57-69). 3. The deferred commencement condition of the consent has been satisfied. The substantive development consent is now operational. The prime agricultural use of the property apparently ceased in January 1999. A building approval issued in June 1999, one of the cabins has now been constructed, and that cabin has apparently won an architectural design award. 4. The applicant has now sought modification of the conditions of consent, pursuant to s 96 of the Environmental Planning & Assessment Act 1979 as it now stands. Seven conditions are affected (1, 3, 4, 10, 19, 22 and 36), and the proposed alterations have been clearly indicated and explained in documents helpfully provided to the court - and interested observers of the development - by the parties. 5. The Council advertised the proposed changes and entertained objections (see summary in Exhibit B1, pp 50-56). 6. By majority the Council has resolved to support the making of the modification by consent orders of the court, and the objectors have been notified, and invited to attend today and be heard (see Exhibit B1, pp 70ff, especially last par of p 74). 7. None of the objectors has come today, but all of their submissions ( Exhibit B1 , pp 22-47) have been carefully considered by Council, and now by me. Obviously their original submissions - that what was being developed was a resort of some sort, and/or that there would ultimately ensue a " subdivision by stealth " - remain strong. 8. In those circumstances, and always in cases of this type, the court has to be satisfied that the modification does not in any way make the project a substantially different development from that originally approved. 9. The principal purposes achieved by the modification sought are: (i) the progressive holiday occupation of the cabins prior to the construction of the environmental education facility, and (ii) an alternative solution to the problem of augmenting water supply. 10. In addition, the court has been told that the consent conditions as they stand put " unreasonable pressure … on the funding of the development as a whole " by constraining any cash flow from the property, given the cessation of stock grazing and breeding as required. (See again Exhibit B1, p 3). 11. Such modifications make no significant change to the project as approved, at least so far as relevant or adverse impacts of its two constituent uses " holiday cabin " and " education establishment " are concerned. Any change could, in some respects, be seen as positive and desirable (see Exhibit B1, p4). 12. This morning the parties negotiated an amendment to the proposed new/modified condition 36. Mr Williams, the principal of the applicant/proponent, was concerned with the scope and wording of the draft new condition in so far as it dealt with possible sale of the property. Certainly, at the original hearing, Council's serious concern about potential subdivision was made very clear, and I expressed the court's concern about " excessive " use of s 88B instruments (see p 62). In any event, the parties have reached agreement on amended condition 36, and the court is happy to accept/adopt that revised wording of the condition. 13. Speaking generally in respect of the modification application, I should like to note that on the material before me today it would appear that Mr Williams has pursued his objectives in regard to the modification in a responsible and consultative way (see, for example, his correspondence with Council in Exhibit B1 ), and the parties have agreed on the outcome they wish the court to sanction. 14. I am satisfied that this remains substantially the same development as that I approved in April 1998. 15. I accept Mr Williams' assurance from the Bar Table that, despite Council's not insisting on some firm timetable, his group will proceed with the construction of the educational facility immediately after the 10 cabins have been completed, so that the central concept of my April 1998 approval is realised. As I understand his submission, the cabins will be completed by about the end of this year, and then the educational facility will proceed. 16. Accordingly, I have decided to make the consent orders as follows: 1. The development consent granted by the court on 16 April 1998 is modified pursuant to s 96 of the Environmental Planning & Assessment Act 1979, subject to the conditions in Annexure 'A'. 2. I make no order as to costs. 17. I have initialled the form of consent orders, and dated them today, and have done the same with the four pages of Annexure 'A', noting the amendments that have been made in handwriting to condition 36, particularly paragraphs (a) and (b) to deal with the matter to which I have referred. 18. I further order that Exhibits B1 and B2 should remain with the court file. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.