Land and Environment Court of New South Wales CITATION : Chase Property Investments Pty Limited v Blue Mountains City Council [2005] NSWLEC 476 APPLICANT: Chase Property Investments Pty Limited PARTIES : RESPONDENT: Blue Mountains City Council FILE NUMBER(S) : 10389 of 2005 CORAM: Lloyd J Development Application :- appeal against refusal of development application - amendment following lodgement of appeal KEY ISSUES: Practice and Procedure: - substitution of amended plans - leave refused DATES OF HEARING: 10/06/2005 EX TEMPORE JUDGMENT DATE : 06/10/2005 APPLICANT: P R Clay (barrister) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: T Cork (solicitor) SOLICITORS: McPhee Kelshaw JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Friday, 10 June 2005 LEC No. 10389 of 2005 CHASE PROPERTY INVESTMENTS PTY LIMITED v BLUE MOUNTAINS CITY COUNCIL [2005] NSWLEC 476 EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a motion by the applicant to rely upon amended plans at the hearing of an appeal against the refusal of a development application. 2 On 2 November 2004 the respondent, Blue Mountains City Council, refused a development application for the construction of an integrated housing and community title sub-division and tourist accommodation development comprising 84 dwellings, homestead, associated car parking and landscaping on certain land in Govetts Leap Road, Blackheath. 3 It seems that a number of studies were necessary to support the development application including a stormwater quality management plan, a geotechnical assessment, a hydrology assessment, and a waste water strategy. 4 The proposed development includes a proposal that the sewerage from some twenty per cent of the site be discharged to the existing sewerage system at Blackheath, and some eighty per cent of the sewerage and waste water would be removed by effluent road tankers. It seems that effluent disposal remained a chief concern and was the principal, indeed the only, ground of refusal. 5 The proposed means of effluent disposal, including tanker removal service to and from the site, is likely to impact on the amenity of residents in proximity to the site, as well as the Blackheath town centre, through the movement of effluent road tankers gaining access to the Great Western Highway. That, it seems, was the basis for the main reason for the refusal of the development application. 6 The applicant then, on 26 April 2005, lodged amended plans propounding an alternative method of disposal of sewerage and waste water on the site. The number of dwellings was reduced, I understand, by one from the original number. The development remains a mix of tourist and residential accommodation. The amended development has identical road networks. 7 The overall height of the dwellings has been reduced slightly and, it is said, that what is now proposed responds to the reasons for refusal by providing an on­site sewerage system to avoid the need for tankering. 8 I should also mention that on 28 April 2005 a second development application was lodged, which has not yet been considered and determined by the council, which is substantially the same as the amended proposal now sought to be relied upon. 9 In the original application there was material before the council supporting the proposal not to re-use effluent and grey water to irrigate the site, as it had been indicated that both the site and weather patterns in the area may not be appropriate, and that significant further assessment may be required for re-use of waste water for as irrigation. 10 The geotechnical assessment lodged with the original development application refers to the fact that although the soils at the site are sandy, and the terrain is moderately steep, there is evidence, in the form of wet soil patches and small seeps, that the water table is shallow. This is said to be consistent with the experience in Memorial Park, about 200-250 metres north-west of the site, where the local swimming pool has been closed due to damage caused by groundwater uplift pressures. It is understood that winter water tables may be within 0.7 metres of the surface. It is said that there is likely to be several water tables present within the sandstone bedrock at the site, and this is common pattern in such terrain. 11 The practical consequence on such a site as this is for localised waterlogging to occur following rain and in winter when evaporation is greatly reduced. 12 It is fair to say that although the number of dwellings remains the same, and the general layout remains the same, a fundamental aspect of the proposal relates to geotechnical issues and the water and wastewater strategy. The Court, of course, does not have the power to allow an amendment which differs in any material respect from that described in the plans accompanying the development application. 13 In view of the fact that the disposal of sewage and wastewater was the sole ground of refusal, and what is now proposed affects a fundamental change to what was previously proposed, I do not think that it can be said that this is a development which does not differ in any material respect from the original. 14 Accordingly, the motion to rely upon the amended plans is refused. The matter will be listed before the Registrar on 15 June 2005. The exhibits may be returned. I hereby certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate ********* - 1 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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