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: i) have changed in a material operating fashion since the relevant base date; and ii) about which it says it is not satisfied that there is no significant environmental impact arising as a consequence of the identified change 2) Mr Smythe an d Ms Tucker are directed to prepare a joint report which: i) lists those matters in (2)(i) about which they agree that there is a change in a material operating fashion since the relevant base date; ii) lists those matters in (2)(i) about which they disagree that there is a change in a material operating fashion since the relevant base date and their reasons for disagreement; iii) for all matters in (3)(i) and (ii), on the assumption the Court may find against the applicant and determine that all matters in (3)(ii) do involve a change in a material operating fashion since the relevant base date, as to which changes, if any, they agree that information already provided to the respondent should satisfy it that there is no significant environmental impact arising as a consequence of the identified change; and iv) for all matters in (3)(i) and (ii), on the assumption the Court may find against the applicant and determine that all matters in (3)(ii) do involve a change in a material operating fashion since the relevant base date, where they disagree that information already provided to the respondent should satisfy it that there is no significant environmental impact arising as a consequence of the identified change, what information (including detailed page and paragraph identification and references to relevant air photos and/or topographic maps) the applicant says should so satisfy the respondent and why the respondent says it cannot be so satisfied by such information. 9 The reason for the use of the phrase "no significant environmental impact" is as a consequence of cl 35 of Pt 2 of Schedule 3 to the Environmental Planning and Assessment Regulation 2000 (the Regulation) that development will not be designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development, that is the development together with the additions or alterations compared with the existing approved development. 10 I have now been provided with the joint report of Mr Smythe and Ms Tucker. It is not necessary for me to canvass at length the matters that they deal with except to say that I am satisfied that they sufficiently and appropriately address the matters that I have set out as being contained in the earlier directions given in these proceedings. 11 As a consequence of considering their conclusions, I am satisfied that it is appropriate that I adopt their conclusions for the reasons set out in the joint report. 12 Their conclusions are effectively that, if a declaration were required to be considered in terms of the Notice of Motion filed by the applicants, such a declaration should be made as there is no factual basis (in terms of the relevant provision of the Regulation cited above) that would require matters the subject of the present application to be treated as designated development. 13 Thus there can be no reason for requiring an updating of the environmental impact statement already in existence for the premises as a consequence of an earlier approved application to the Council. 14 The result is that the finding of fact which I have made, based on that joint expert report, effectively renders nugatory the necessity for a declaration in terms of the applicants' Notice of Motion. 15. I have been asked to make a number of directions, by consent, in the further consideration of the substantive elements of Matter 10039 of 2001. I have been provided by the parties with the reasons for the lengthy period of time proposed in this timetable. Although the matters have been before the Court for a considerable period of time, I am prepared to accept this timetable as a means of bringing these proceedings to a final conclusion. I therefore direct, by consent, that: 1. By 30 April, the respondent is to file and serve a list prepared by Mr Smythe of those works or practices he recommends; 2. By 1 September, the applicant is to file and serve a response by Ms Tucker to the matters raised by Mr Smythe; 3. By 1 November, the respondent is to file and serve Mr Smythe's answer to Ms Tucker's response; 4. The applicant is granted liberty to amend the application to include one or more of the matters in the joint report of Mr Smyth and Ms Tucker; 5. The application (as further amended or otherwise) is to be presented to the respondent on or before 1 December 2007; 6. Matter 10039 of 2001 is stood over to telephone callover before the Registrar on 13 December 2007; and 7. Leave to re-list before the Registrar on one week's notice 16. However, as I have dealt with the determination of the preliminary question of fact referred by Lloyd J, the Notice of Motion, although now rendered academic, remains to be disposed of in those proceedings. I therefore stand the Notice of Motion in Matter 10039 of 2001 over to telephone callover before the Registrar on 14 May. I do not propose to give any directions about return the exhibits so they therefore will remain with the file in Matter 10039 of 2001. 17. This determination in Matter 10039 of 2001 renders the matters subject to appeal in Matter 10040 of 2001 otiose. After discussion with the representatives of the parties, I propose to dismiss those proceedings, by consent. Tim Moore Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.