Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 111

Land and Environment Court New South Wales

Medium Neutral Citation: Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 111 Hearing dates: 3, 4, 5 May, 29, 30 June, 6, 7 July, 15, 16, 17, 18, 19 August 2016 Decision date: 30 August 2016 Jurisdiction: Class 1 Before: Moore J Decision: Conclusions at [99] and directions at [100] and [101] Catchwords: DEVELOPMENT APPLICATION –- proposed fire trials/cycle ways/pedestrian paths in environmentally sensitive lands –- no objection to cycle way/pathway element –- additional impact of constructing as fire trials –- provisions of the LEP –- provisions of the DCP –- construction as fire trials acceptable DEVELOPMENT APPLICATION –- proposed vegetation clearing –- approval is sought before detailed subdivision plan submitted to Council –- prematurity –- ability to vary a development consent as a condition of a subsequent subdivision consent –- agreement by applicant to accept a condition that no clearing would be undertaken until after the relevant detailed subdivision application had been approved – –- utility of granting approval of vegetation clearing –- vegetation clearing approved DEVELOPMENT APPLICATION –- application for approval to clear vegetation identified in earlier consent as warranting retention –- desirability of retaining protection of the vegetation until subsequent detailed subdivision application considered –- ability to vary prior consent if vegetation removal justified in light of detailed subdivision application –- condition requiring retention of vegetation imposed PRACTICE AND PROCEDURE –- application to add new contention –- lateness of application –- ability to deal with the contention forthwith if leave granted –- leave granted ACCESSIBILITY –- late application to impose accessibility condition –- uncertainty of outcome if condition imposed –- removal of jurisdiction to resolve disputes concerning condition if condition imposed –- unacceptable environmental impact of additional construction necessary if condition imposed –- condition rejected Legislation Cited: Disability Discrimination Act 1992 (Cth) Environmental Planning and Assessment Act 1979 ss 80A, 8D Planning for Bushfire Protection 2006 Planning for Bushfire Protection 2001 State Environmental Planning Policy (Sydney Growth Centres) 2006 Threatened Species Conservation Act 1995 Wollondilly Development Control Plan 2016 Vol 2 pt 2.1 Wollondilly Development Control Plan 2011 Wollondilly Local Environmental Plan 2011 cl 7.2 Wollondilly Local Environmental Plan 1991 Cases Cited: Aon Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175 Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Shire of Perth v O'Keefe (1963) 110 CLR 529 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Category: Principal judgment Parties: Lend Lease Communities (Wilton) Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: Mr P Tomasetti SC/Mr J Johnson, barrister (Applicant) Mr C McEwen SC/Mr M Seymour, barrister (Respondent)