Zammit v Wingecarribee Shire Council [2007] NSWLEC 232

Land and Environment Court of New South Wales

CITATION : Zammit v Wingecarribee Shire Council [2007] NSWLEC 232

APPLICANTS C & E Zammit PARTIES : RESPONDENT Wingecarribee Shire Council

FILE NUMBER(S) : 10039 and 10040 of 2001

CORAM: Moore C

KEY ISSUES: Designated Development - Development Application - Development Consent :- Preliminary point whether the changes over time have resulted in "no significant impact on the environment"

LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 sch 3

DATES OF HEARING: 28 August, 6 & 7 December 2006 and 9 March and 12 April 2007

EX TEMPORE JUDGMENT DATE : 12 April 2007

APPLICANTS Mr P McEwen SC INSTRUCTED BY Champion Legal LEGAL REPRESENTATIVES: RESPONDENT Mr B Bilinsky, solicitor B Bilinsky & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C

12 April 2007

10039 and 10040 of 2001 C & E Zammit v Wingecarribee Shire Council

JUDGMENT

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

1 COMMISSIONER: In Matter 10039/01, the applicants originally filed a Notice of Motion, on 20 April 2006, seeking a declaration that the building works, the subject of the amended development application submitted to the respondent by the applicant on 4 November 2005, were not designated development. 2 Lloyd J determined, in July 2006, that that matter was amenable to a preliminary determination of a matter of fact and subsequently the matter was referred to me for consideration of the facts and circumstances which would necessarily underlie such a declaration if it were to be made. 3 On 28 August 2006, I visited the piggery which is the subject of the proceedings and inspected it in company with the legal representatives of the parties. At the subsequent hearing that day, at Moss Vale Courthouse, after considering two aerial photographs showing the piggery at various points in time some distance apart, I gave a number of directions for the further carriage of the matter. 4 As a consequence of a further amended development application being submitted to the respondent by the applicant on 25 September 2006, the Notice of Motion was amended to seek the declaration in the context of this further amended development application. 5 Following the subsequent taking of leave by Mr Mitchell, the council officer having responsibility for the matter, on account of illness, the matter returned to me for my consideration in early December 2006. At that time, a timetable for progressing the matter was set and detailed directions given. 6 Subsequently, in light of Mr Mitchell's continuing ill health and necessary withdrawal from further employment with the council as a consequence of his illness, further directions were made, by consent, substituting Mr Smythe as the council's expert in these matters. 7 I therefore propose to record, now, in the context of Mr Smythe and Ms Tucker, the applicant's expert, the directions that provided the underlying basis for the joint expert report which has been tendered, today, in the proceedings. 8 The directions relevantly were as follows: 1) Mr Smythe and Ms Tucker.are directed to confer on those elements of the present operation of the piggery (at an operating level of 500 sows) which the respondent says: