Land and Environment Court New South Wales Medium Neutral Citation: Parris v Young Shire Council [2015] NSWLEC 1164 Hearing dates: 11 February, 27 March and 30 April 2015 Date of orders: 19 May 2015 Decision date: 19 May 2015 Jurisdiction: Class 1 Before: Moore SC Decision: For Matter No 11021 of 2103, see (13); and For Matter No 11022 of 2103, see (14). Catchwords: SUBDIVISION: adjustment of boundary of approved two allotment subdivision to transfer vegetated areas to the second of the main allotments DEVELOPMENT APPLICATION: proposed tourist facility on the first of the main allotments; revegetation area; threatened species; effluent disposal DEVELOPMENT APPLICATION: further subdivision of the second of the main allotments into fourteen residential allotments; road design requirements; drainage; effluent disposal DEVELOPMENT APPLICATION: removal of trees Category: Principal judgment Parties: George Parris (Applicant) Young Shire Council (Respondent) Representation: Counsel Mr C McEwen SC (Applicant) Mr P Clay SC (Respondent) Solicitors BCP Lawyers & Consultants (Applicant) Bradley Allen Love Lawyers (Respondent) File Number(s): 11021 and 11022 of 2013; 10729 of 2014 Judgment 1. SENIOR COMMISSIONER: Bendick Murrell is a hamlet on the Olympic Highway between Young and Cowra. Just off the Olympic Highway, the applicant has purchased a parcel of land of approximately 10 ha that was a former travelling stock reserve. He had previously applied to Young Shire Council (the Council) and been granted consent for a two lot subdivision of this landholding to create two approximately equal sized allotments that are rectangular in shape; have a primary north/south axis; and, at their southern end, have a frontage to Bendick Murrell Road. 2. These three proceedings arise from applications to the Council concerning: * A proposal to construct a small-scale cabin style tourist facility on the more eastern of the two allotments with access to the facility being via a driveway from Bendick Murrell Road (Matter No 11021 of 2013); * An application to subdivide the more western of the two allotments into fourteen individual allotments with a central spine access road coming off Bendick Murrell Road. Each of these proposed allotments would have a designated building envelope for a single residence and in a designated area, where necessary, have an on-site effluent disposal field (Matter No 11022 of 2013); and * An application seeking consent to the removal of a number of trees (Matter No 10769 of 2014). 1. A wide range of contentions were initially pressed in the proceedings with these including: * Road construction in Bendick Murrell Road (including at its intersection with the Olympic Highway); * Drainage; * Impacts on ecologically sensitive flora and fauna; * Effluent disposal. 1. The hearing commenced with a site inspection undertaken in company with counsel for the parties and those advising and/or instructing them. The advisors included a range of relevant experts on behalf of both the applicant and the Council. During the course of the site inspection, particular attention was paid to the ecologically sensitive areas at the eastern centre section and northern end of the more western approved allotment and the totality of the vegetation on the more eastern of the two allotments. 2. At the conclusion of the site inspection, the parties agreed that, for the efficient utilisation of time, it would be appropriate to return to the Council's offices where, in an informal fashion, the experts could give evidence about the matters that remained in dispute after the site inspection (together with such opportunities as they might consider arose to address those remaining issues). 3. After returning to the Council's offices, it became apparent during the informal evidence given by the experts that: * redesign of the subdivision that had been approved in a fashion that incorporated the sensitive vegetated areas on the western of the two allotments as part of the eastern allotment; * the road design issues concerning Bendick Murrell Road were capable of being subject to an agreed position between the parties; and * a reduction in and redesign of the subdivision layout for the proposed residential subdivision on what would comprise the remaining western allotment were capable of resolving the Council's issues concerning a residential subdivision on that allotment; 1. It also emerged that a redesign of the proposed tourist facility and the designation on its revised allotment of two conservation areas and a revegetation area coupled with careful design of stormwater drainage discharge from the western allotment onto the eastern allotment would also resolve the issues concerning that proposed tourist development. 2. Further, it emerged that, if all of these measures were able to be implemented to the satisfaction of both parties, there would be no need to proceed with the appeal concerning the application for the removal of trees. 3. As consequence of the position that had emerged at the conclusion of the informal evidence of the Council's offices, I adjourned the proceedings to enable more detailed discussion to take place directly between the parties in anticipation that, for the two substantive appeals that would remain for consideration, there was a distinct possibility that agreements could be reached that would permit each matter to be resolved by consent orders. As a consequence, the matter was adjourned for a sufficient period to permit such discussions to take place. 4. When the matter returned to court for a final hearing, Mr C McEwen SC for the applicant and Mr Clay SC for the council were able to advise me that both substantive applications were now able to be resolved by consent orders whilst the application for the removal of trees was no longer necessary and that those proceedings would be discontinued on terms agreed between the parties. 5. At a subsequent hearing concerning the proposed consent orders (there being no of objectors to be heard), Mr McEwen tendered and took me through all relevant documents necessary to provide a proper foundation for my approval of the proposed consent orders (there being no issues concerning permissibility of any aspect of either proposed development). 6. On the basis of the evidence given informally at the Council's offices at the commencement of the process and the material tendered and submissions made in court on behalf the applicant, I am satisfied that it is appropriate to make the consent orders sought in each of the matters. Orders 1. In Matter 11021 of 2013, by consent, the orders of the Court are: 1. The Applicant is granted leave to amend development application 2013/DA-00092 by substituting the plans the subject of that application so that the application contains the following plans: Drawing No Computer reference Name of plan Date Prepared by 1 of 3 254604_TP1M Proposed Plan of Subdivision for 2013/DA-00051 Showing Tree Information 29/04/2015 4.32pm DPS 2 of 3 254604_TP1M Proposed Plan of Subdivision for 2013/DA-00051 Showing Tree Information 29/04/2015 4.32pm DPS 3 of 3 254604_TP1M Proposed Plan of Subdivision for 2013/DA-00051 Showing Tree Information 29/04/2015 4.33pm DPS 1, 2 and 3 of 3 General Accommodation Cabin 04/13 Andy's Design & Drafting 1 and 2 of 3 and 2 of 6 Kitchen/Dining 04/13, 03 /13 and 03/13 Andy's Design & Drafting 1, 2 and 3 of 3 Manager's Residence 03'/13, 06/12 and 04/13 Andy's Design & Drafting 1, 2 and 3 of 3 Office/Reception 04/13 Andy's Design & Drafting 1, 2 and 3 of 3 Accommodation Cabin - Disabled 04/13 Andy's Design & Drafting 1. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the consent authority that are thrown away as a result of amending the development application (the amendment being other than a minor amendment). 2. Development consent is granted to Development Application 2013/DA-00092, as amended, to construct and operate tourist accommodation subject to the conditions of consent at Annexure A. 3. The exhibits, other than Exhibits 1, 4, C, D and H, are returned. 1. In Matter 11022 of 2013, by consent, the orders of the Court are: 1. The Applicant is granted leave to amend development application 2013/DA-00051 by substituting the plans the subject of that application with the following; Drawing No Computer reference Name of plan Date Prepared by 1 of 3 254604_TP1M Proposed Plan of Subdivision for 2013/DA-00051 Showing Tee Information 29/04/2015 4.32pm DPS 2 of 3 254604_TP1M Proposed Plan of Subdivision for 2013/DA-00051 Showing Tree Information 29/04/2015 4.32pm DPS 1. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the consent authority that are thrown away as a result of amending the development application (the amendment being other than a minor amendment). 2. Development consent is granted to Development Application 2013/DA-00051, as amended, for a 14 lot subdivision subject to the enclosed conditions of consent at Annexure A. 1. Matter 10769 of 2014 was discontinued by consent by Notice of Discontinuance filed on 12 May 2015. Tim Moore Senior Commissioner 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. Decision last updated: 19 May 2015