Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 3) [2011] NSWLEC 31

Land and Environment Court New South Wales

Medium Neutral Citation: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 3) [2011] NSWLEC 31 Hearing dates: 4 March 2011 Decision date: 04 March 2011 Jurisdiction: Class 4 Before: Pepper J Decision: Procedural Catchwords: Evidence: whether town planning affidavit served late should be admitted into evidence - whether report relevant - whether consideration of affidavit by Court constitutes impermissible merits review in Class 4 proceedings - affidavit admitted into evidence. Cases Cited: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2), Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2010] NSWLEC 79; (2010) 176 LGERA 356 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [2011] NSWLEC 25 Category: Procedural and other rulings Parties: Wollondilly Shire Council (Applicant) Foxman Environmental Development Services Pty Ltd (First Respondent) Phillip Foxman (Second Respondent) Botany Building Recyclers Pty Ltd (Third Respondent) Representation: Counsel: Mr T Howard (Applicant) Mr P Clay with Mr M Seymour (First, Second and Third Respondents) Solicitors: Hones La Hood (Applicant) Whittens Lawyers (First, Second, Third Respondent) File Number(s): 40578 of 2010

Judgment

Introduction 1This judgment contains my reasons, in an amplified form, for admitting the report of a town planner into evidence in these proceedings. The background to this judgment is contained in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [2011] NSWLEC 25. 2Wollondilly Shire Council ("the council") objects to the admission into evidence of an affidavit of Mr Andrew Darroch, a consultant town planner and the principal of Mersonn Pty Ltd, sworn 24 January 2011. 3In December 2010 Mr Darroch prepared a development application ("the DA") in respect of the land the subject of these proceedings. The DA was lodged with the council. Attached to that DA was a Statement of Environmental Effects also dated December 2010 ("SEE"). 4The DA is to permit the respondents to remediate the imported fill on the land, remediate and restore the water courses and bushland areas and to complete the fire access trails including, compaction, cut and fill, battering, vegetation and landscaping, bush regeneration and weed eradication. The application also seeks to erect a dwelling with its attendant infrastructure and to carry out bushfire management works. 5In the SEE, Mr Darroch opines that there are no significant environmental issues that would preclude consent been granted to the DA. In coming to these conclusions Mr Darroch has relied on: (a) flora and fauna assessment prepared by Bushfire and Environmental Services Pty Ltd dated December 2008; (b) a remedial action plan prepared by JBS Environmental Pty Ltd dated December 2010; (c) an ecological review prepared by Elizabeth Ashby of Keystone Ecological, dated 3 December 2010; (d) a geotechnical opinion dated 2 December 2010, prepared by Jeffery and Katauskas Pty Ltd; (e) a bushfire hazard assessment report prepared by Building Code & Bushfire Hazard Solutions Pty Ltd dated 8 December 2010; (f) a fluvial geomorphology and impact assessment prepared by Andrew Macleod of Strategic Environmental and Engineering Consulting Pty Ltd, dated 6 December 2010; and (g) various aerial photographs, plans and surveys of the land requiring remediation 6All of these reports were annexed to the affidavit. Most had been in the possession of the council on or about the date of their creation.