Land and Environment Court of New South Wales CITATION : Smith v Wyong Shire Council [2007] NSWLEC 637 APPLICANT Darcy Peter Smith PARTIES : RESPONDENT Wyong Shire Council FILE NUMBER(S) : 10852 of 2007 CORAM: Brown C KEY ISSUES: Appeal :- modification of a development application granted by the council in September 2004 for a residential flat building LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Sharp v Hunters Hill Council [2002] 120 LGERA 155 DATES OF HEARING: 12/09/2007 EX TEMPORE JUDGMENT DATE : 12 September 2007 APPLICANT Mr R. O'Gorman-Hughes, barrister SOLICITORS Law and Planning LEGAL REPRESENTATIVES: RESPONDENT Mr J. Cole, solicitor SOLICITORS Home Wilkinson Lowry Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 12 September 2007 10852 of 2007 Darcy Peter Smith v Wyong Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal of an application for the modification of a development consent granted by the council in September 2004 for a residential flat building comprising 217 units at 30 - 36 Toowoon Bay Road, 17A - 21 Kitchener Road and 11 Centennial Avenue, Long Jetty. 2 The modification application seeks the deletion of condition 5. This condition states: 5. A Construction Certificate is to be issued by the Certifying Authority prior to the commencement of any works including the basement car park. The application for this certificate is to satisfy all of the requirements of the Environmental Planning and Assessment Regulations. 3 Mr Wesley Wilson, the Acting Team Co-ordinator Major Applications, within the council's development assessment unit provided evidence in support of the retention of condition 5. He maintained that condition 5 should not be deleted as the condition ensures works associated with the carrying out of the development, including remediation and any associated construction, excavation and demolition were captured and appropriate details relating to, for example, work and public safety, protection of environment and residential amenity were addressed up front prior to any such works being commenced. In his opinion, without this information it can be reasonably argued that council or a Private Certifying Authority could not be satisfied that the development could proceed safely or without potential impacts on the environment or the residential amenity. 4 Mr O'Gorman-Hughes for the applicant submits that the condition can be deleted for a number of reasons. Firstly, it is inconsistent with the provisions of s 81A(2) of the Environmental Planning and Assessment Act 1979 as a construction certificate is not necessarily required. He cites Sharp v Hunters Hill Council [2002] 120 LGERA 155 [at 22] to support this submission. 5 Secondly, the inclusion of the condition is inconsistent with other conditions of consent, particularly conditions 11 and 13 where work is required. 6 Thirdly, condition 5 is unnecessary as the conditions identified by the council, namely, conditions 14, 15, 16, 17, 19 and conditions 57 to 73, have sufficient requirements contained within each of the conditions to satisfy the concerns raised by the council. The conditions generally contain terms to the effect that work cannot be carried out prior to the commencement or demolition or the issue of a Construction Certificate. 7 Mr Cole, for the council, submits that the imposition of condition 5 is a logical approach to the proposed development in that it ensures a proper sequence for development in a range of different matters. It also provides a fail safe approach to a range of important matters raised in the consideration of the application by the council. 8 In considering the submissions and the evidence of Mr Wilson, I am satisfied that condition 5 can be deleted. I accept the submissions of Mr O'Gorman-Hughes that the identified conditions have sufficient safeguards within the conditions to ensure that the development could proceed safely or without potential impacts on the environment or the residential amenity. 9 The Orders of the Court therefore are: 1. The appeal is upheld. 2. The application to modify Development Application No 1107/04 for the erection of residential flat buildings at 30-36 Toowoon Bay Road, 17A-21 Kitchener Road and 11 Centennial Avenue, Long Jetty is approved by the deletion of condition 5. ___________________ G T Brown Commissioner of the Court ljr 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.