Land and Environment Court of New South Wales CITATION : Minister for Planning v Bega Valley Shire Council and Boydtown Pty Limited [2006] NSWLEC 529 APPLICANT Minister for Planning PARTIES : FIRST RESPONDENT Bega Valley Shire Council SECOND RESPONDENT Boydtown Pty Limited FILE NUMBER(S) : 40295 of 2006 CORAM: Talbot J KEY ISSUES: Development Consent :- proper consent authority for application to modify development consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 28/07/2006, 18/08/2006 (written submissions) DATE OF JUDGMENT: 08/25/2006 APPLICANT Ms S A Duggan (barrister) SOLICITORS Department of Planning FIRST RESPONDENT LEGAL REPRESENTATIVES: submitting SOLICITORS M E McMahon & Associates SECOND RESPONDENT submitting SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 25 August 2006 40295 of 2006 Minister for Planning v Bega Valley Shire Council and Boydtown Pty Limited JUDGMENT 1 Talbot J: In its Points of Claim the Minister refers to the history of a development application lodged by the second respondent in September 1989 and determined by the Minister following a Commission of Inquiry on 5 November 1990. Building, engineering or construction physically commenced in accordance with the consent in November 1995. In September 2005 the second respondent submitted an application purporting to be pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("EP&A Act") to the council. On 11 January 2006 the council purported to approve the application under s 96. The Minister claims that the first respondent was not the consent authority empowered to modify the development consent pursuant to s 96(2) of the EP&A Act as the purported approval was not granted in respect of a consent granted by the first respondent. 2 A further claim is made that the purported approval related to development that was not substantially the same development as that to which the original development consent related in breach of s 96(2)(a). Moreover and in the alternative, the purported approval of the s 96 application was unreasonable in the Wednesbury sense. 3 The first and second respondents have entered submitting appearances. Written submissions have been received from Ms Duggan, counsel for the applicant Minister. Ms Duggan reiterates and relies upon the above facts, which have not been disputed by either respondent. 4 There is no argument that the Minister became the consent authority in respect of the development application pursuant to s 101(11) of the EP&A Act (now see s 76A(9)) following a direction made that the development application be referred for determination by him in February 1990. Section 101(3)(a), as it then was, provided that a consent authority other than the Minister could not determine any development application to which a direction applied. Section 102(3) of the EP&A Act had the effect that the Minister remained the consent authority for the purposes of an application for modification of the development consent. 5 The development the subject of the development application was state significant development by dint of cl 17 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998. The marina development the subject of the development consent remains state significant development now covered by Part 3A of the EP&A Act as a consequence of the inclusion of marina developments in cl 6 and Sch 1 of State Environmental Planning Policy (Major Projects) 2005. 6 Accordingly the Minister has been the consent authority at all material times. Under s 96 of the EP&A Act the consent authority that granted consent has power to modify the development consent. 7 It is alleged by the applicant and acknowledged by the respondents that the development as modified was not substantially the same as that to which the original development consent related for the following reasons: a) The development consent approved construction of a marina and boatharbour complex which comprised 250 wet berths, three breakwaters, a mooring area for up to 40 craft, a repair and maintenance facility and dry storage facilities for up to 70 power craft and 30 yachts. c) The works approved under the development consent included excavation and dredging of approximately 650,000m3 of material. d) The development consent permitted the extracted material (referred to in paragraph (c) above) to be used on site for the following purposes: · topsoil material to be stockpiled for re-use in landscaped areas; · to form a sandy beach near the primary outer breakwater (some 10,000m3); · beach nourishment for Boydtown Beach (25,000m3); · fill on the site (50,000m3); and · stockpiling of extracted material suitable for the manufacture of concrete for use in the construction of the marina (550,000m3). e) The development consent did not approve the removal of extracted material from the site for commercial resale. f) The purported approval granted by the First Respondent in respect of the s.96 application permits: · extraction of up to 90,000m3 of material suitable for manufacture for concrete; and · transportation of that material for commercial resale off site. 8 Not only was it wrong in fact for the council to determine the application for modification on the basis that it was substantially the same development it was manifestly unreasonable for it to do so in the circumstances. 9 I find that the council had no power to grant an approval for modification of the development consent. Moreover even if the approval was within power of the council as consent authority it was invalid on the basis it was inconsistent with the requirements of s 96 of the EP&A Act and the decision itself was manifestly unreasonable. 10 For all of the above reasons I agree that the following declarations and orders should be made by consent: 1. Declare that the First Respondent granted approval for the modification of development consent to development application DA 89/1440 in breach of s 96 of the Environmental Planning and Assessment Act 1979. 2. Declare that the Applicant is the consent authority authorised to modify development consent to development application DA 89/1440 in accordance with s 96 of the Environmental Planning and Assessment Act 1979. 3. Declare that the purported modification of development consent to development application DA 89/1440 by the First Respondent on 11 January 2006 is invalid. 4. The costs of the proceedings be reserved. 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