Hardie Holdings Pty Limited v Cessnock City Council [2010] NSWLEC 1259

Land and Environment Court of New South Wales

CITATION : Hardie Holdings Pty Limited v Cessnock City Council [2010] NSWLEC 1259

APPLICANT Hardie Holdings Pty Limited

PARTIES : RESPONDENT Cessnock City Council

INTERVENOR (pursuant to s64 of the Land and Environment Court Act 1979) Roads and Traffic Authority

FILE NUMBER(S) : 10662 of 2009

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT CONSENT :- Modification application; De facto new application

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 5 May 2010

EX TEMPORE JUDGMENT DATE : 5 May 2010

APPLICANT Ms A Pearman, barrister INSTRUCTED BY MRM Thompson Norrie

RESONDENT Mr P Clay, barrister LEGAL REPRESENTATIVES: INSTRUCTED BY Sparke Helmore

INTERVENOR (pursuant to s64 of the Land and Environment Court Act 1979) Mr R Lancaster SC INSTRUCTED BY Blake Dawson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

5 May 2010

10662 of 2009 Hardie Holdings Pty Limited v Cessnock City Council

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: The applicant in these proceedings currently has development consent to permit it to erect a substantial retail development on Wine Country Drive at Nulkaba. At the present time, the applicant is required by the conditions of consent to construct a signalised intersection at Wine Country Drive and Kerlew Street with the fourth arm, that is the arm to the east, to comprise the access to the site. 2 The applicant has applied, pursuant to s 96 of the Environmental Planning and Assessment Act 1979, to modify the requirements in the development consent approval for that signalised intersection by proposing, as an alternative, an access that would be some 200 metres or so to the north on Wine Country Drive. That is the matter that is presently formally before the Court. 3 The applicant now seeks this morning, by this Notice of Motion, to substitute, for the plans of the intersection (that is the offset intersection to the north which would be unsignalised), a roundabout intersection that is at the location proposed for the signalised intersection required by the consent. The internal configuration of the development would also be changed in a number of modest fashions. 4 The propositions that are put on behalf of the applicant are that, consistent with s 56 of the Civil Procedure Act 2005 for the just quick and cheap resolution of the issues in dispute between the parties and the fact that the plans proposed to be substituted in the s 96 application address substantially the contentions that are raised with respect to the present s 96 application plans, this provides an appropriate basis for dealing with the application to amend this morning, and to permit substitution of the plans. 5 Mr Clay, barrister, puts on behalf of the council, the proposition that there is such a significant difference between the concepts that it constitutes a second s 96 application, one that is not capable of being entertained in these proceedings. 6 Although Ms Pearman, barrister, puts the propositions to me that it has been now for a number of years the approach of the Court in seeking the best community outcome for proceedings, a process and an objective espoused by former Chief Judge McClellan J and by the present Chief Judge, Preston J, those changes that are consistently adopted by Commissioners on the merits, deal with matters that are capable of being dealt with, within the scope of the application then before the Court. That is not the case here. 7 The application that is currently before the Court bears absolutely no resemblance to the application that is the subject of the notice of motion. I reject the Notice of Motion and decline to permit reliance on the proposed amended plans.