Kathryn Sciberras v Mid Coast Council [2017] NSWLEC 1295

Land and Environment Court New South Wales

Medium Neutral Citation: Kathryn Sciberras v Mid Coast Council [2017] NSWLEC 1295 Hearing dates: 5 & 6 December 2016 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed. (2) The application to modify development consent DA-76/2015, issued by Mid Coast Council on 17 September 2015, is refused. (3) The exhibits are returned, with the exception of Exhibits 1, A and B. Catchwords: Application to modify development consent: appeal under s96(1A) of EPA Act; whether the consent as modified would be for substantially the same development as the development for which the consent was originally granted. Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Great Lakes Local Environment Plan 2014 Land and Environment Court Act 1979 Cases Cited: nil Texts Cited: nil Category: Principal judgment Parties: Kathryn Sciberras (Applicant) Mid Coast Council (Respondent) Representation: Counsel:

M. Seymour (Applicant) H. Irish (Respondent)

Solicitors:

D. Dunn, Stacks Lawyers (Applicant) Local Government Legal (Respondent) File Number(s): 2016/246705 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: This is an appeal by Ms Kathryn Sciberras (the Applicant) against the refusal by Mid Coast Council (the Respondent) of application to modify 14 conditions of consent for the subdivision of land (development consent DA-76/2015). 2. The original consent was issued on on 17 September 2015 and was for the subdivision of one lot (Lot 8 DP 1156631, Pacific Highway, Failford) (the Subject Site) into two lots (proposed lots 81 and 82). 3. The Subject Site is located approximately 17 km north of Tuncurry and is zoned R2 (Rural landscape) under Great Lakes Local Environment Plan 2014 (GLLEP 2014) . It is bounded to the west by the Pacific Highway, to the south by Greys Road, and to the east and north by adjoining private lands. 4. The modification application was made under s96(1A) of EPA Act. The appeal is lodged under s97AA of the Environmental Planning and Assessment Act 1979 (EPA Act and was subject to mandatory conciliation on 5 December 2016 under s34AA of the Land and Environment Court Act 1979 (LEC Act). 5. A site inspection was undertaken as part of the s.34AA conciliation conference. No objectors sought to make submissions to the Court in relation to this appeal. 6. Leave was granted for the Applicant to rely on the following outcomes from the s.34AA conciliation conference: 1. a proposed access handle from Greys Rd to proposed lot 82 was deleted from the proposal; 2. a new access to proposed lot 82 was added to the proposal. This was to be located to the north of the deleted access handle, and at a location towards, but short of, the proposed conservation area. 3. the Applicant agreed to prepare a new plan of subdivision to reflect these changes. 4. the requirements for an electricity supply certificate (Condition 20) and telephone supply certificate (Condition 21) were not pressed by the Respondent, and it was agreed could be deleted from the conditions of consent. 1. At the hearing the remaining contentions between the Parties concerned conditions requiring the Applicant to: 1. undertake certain upgrade works to Greys Rd; 2. make certain contributions under s.94 of the EPA Act;. 3. set aside certain lands for the purposes of environmental protection and for the Applicant to take steps to ensure restrictions as to use, to be established under s88B of the Conveyancing Act 1919, were recorded in support of this outcome.