PGH Environmental Planning v Wollongong City Council [2009] NSWLEC 1385

Land and Environment Court of New South Wales

CITATION : PGH Environmental Planning v Wollongong City Council [2009] NSWLEC 1385

APPLICANT PGH Environmental Planning PARTIES : RESPONDENT Wollongong City Council

FILE NUMBER(S) : 11235 to 11240 of 2008

CORAM: Moore SC

DEVELOPMENT APPLICATION :- KEY ISSUES: Bushfire safety Onerous conditions

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Wollongong City Local Environmental Plan 1990

DATES OF HEARING: 19 to 22, 26 and 27 October and 9 and 10 November 2009

DATE OF JUDGMENT: 17 December 2009

APPLICANT Mr M Craig QC INSTRUCTED BY Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT Mr A Pickles, barrister INSTRUCTED BY Kells Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

17 December 2009

11235 to 11240 of 2008 PGH Environmental Planning v Wollongong City Council

JUDGMENT Introduction 1 SENIOR COMMISSIONER: Sada Services Pty Limited (the company) has landholdings of approximately 600 ha at Maddens Plains to the south of Helensburgh behind the Illawarra escarpment. The holding is in seven allotments – six of which are substantially sized and the final one of them, Lot 74, is an irregularly shaped allotment at the principal entrance to the company's landholding from the Princes Highway. Several of the allotments have telecommunications cables running underground through parts of the proposed building envelopes. These, however, do not provide any constraint on development. For the purposes of this judgement, the totality of the company's landholding is referred to as the site 2 The company has lodged six separate development applications with the Wollongong City Council (the council). Each of these applications seeks consent for a dwelling house and each of the applications relates to one of the six principal allotments in the company's landholding. Lot 74 is proposed to be consolidated with the adjacent larger lot, Lot 1. The council has refused each of these separate development applications – as a consequence these appeals – one for each development application – were heard together (with, to the extent relevant, evidence in one being evidence in each other appeal). 3 To enable a proper understanding of the following discussion of these proposals, a plan showing the layout of these allotments together with the six proposed house sites and various internal features of the company's landholding is reproduced below: 4 The company's landholding comprises primarily bushland (although it is crisscrossed by electricity easements and transmission lines and a series of internal tracks – a number of which are associated with the transmission lines but not exclusively so). One internal bitumen sealed road running from the principal entrance to the site from the Princes Highway, leads to a location at which, in the past, extensive volumes of coal washery waste have been dumped. 5 In the centre of the site toward its north, is located a dam on a separate allotment – this allotment, Lot 2, is not owned by the company. This dam is owned by Illawarra Coke Company Pty Ltd (Illawarra Coke) and is used by this latter company as the source of water supply for the operation of its coking works – these works are to the east and below the escarpment. As part of the proposed arrangements envisaged for some elements of this proposal, Illawarra Coke and the company propose the creation of reciprocal rights of way for access purposes.