Ruddy v Tweed Shire Council [2018] NSWLEC 1387

Land and Environment Court New South Wales

Medium Neutral Citation: Ruddy v Tweed Shire Council [2018] NSWLEC 1387 Hearing dates: 29 – 30 May 2018; 26 June 2018 and 25 July 2018 Date of orders: 25 July 2018 Decision date: 25 July 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The Appeal is dismissed. Catchwords: APPEAL– development application for a truck depot and ancillary office – inadequate application – dismissal of proceedings - Legislation Cited: Civil Procedure Act 2005 Cases Cited: Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Category: Principal judgment Parties: Melony Ruddy(Applicant) Tweed Shire Council (Respondent) Representation: Counsel: T To (Applicant) A Pickles SC (Respondent)

Solicitors: Hones Lawyers Pty Ltd (Applicant) DLA Piper Australia (Respondent) File Number(s): 2017/364504 Publication restriction: No

Judgment 1. On 1 December 2017 the applicant, Melany Ruddy lodged a Class 1 appeal with the Court against Tweed Shire Council's refusal to grant consent to her development application DA 170572 (DA) for a truck depot and ancillary office at 606 Pottsville Road, Sleepy Hollow (Site). 2. Today I dismissed her appeal because the amended application remains inadequate despite repeated adjournments to allow the applicant to address the deficiencies. In the circumstances I was not prepared to entertain any further adjournment of the proceedings – which was the only other option. Let me explain. 3. The proceeding was filed in the Court on 1 December 2017. A directions hearing before the Assistant Registrar by telephone was fixed for January 2018. On 19 January, in accord with the Court's directions the Council filed a Statement of Facts and Contentions (SOFC) identifying the contested issues. Relevantly, at this early stage the applicant was put on notice that her application was deficient and that the available information did not allow for full and proper assessment of the application. The contention particularized the deficiencies. It stated: 5.0 INADEQUACY OF INFORMATION The Respondent identifies the following inadequacies or inconsistencies as hindering a full and proper assessment of the application: A. Lack of noise assessment report The movement of trucks, use of heavy machinery, maintenance and servicing works and other aspects of the depot have potential to create adverse acoustic impacts on the surrounding area. The Applicant has not undertaken a noise assessment report in accordance with the relevant industrial acoustic policies to determine whether the proposed use is compliant. The Applicant has not prepared a Plan of Management (POM) addressing potential acoustic impact(s) of the proposed use. B. Failure to address KPOM The Property is located within the Dunloe Park Koala Precinct (DPKP) of the Tweed Coast Comprehensive Koala Plan of Management (2015) (KPOM). The Applicant has not addressed the relevant provisions of Part 5 of the KPOM. Particularly, a koala habitat assessment has not been undertaken in accordance with Section 6.8.3 of the KPOM and the Applicant has not indicated how the proposed use will satisfy the KPOM's management objectives detailed at Section 3.5.2.2. C. Failure to provide a detailed Plan of Management The Applicant has failed to provide a detailed POM satisfying the planning principles established in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 and Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247. The POM will need to address specific operational issues including noise, parking and arrival of staff, waste, light spill, dust control, run off, koala habitats and any other relevant matters. D. Lack of Adequate Landscape Plan Having regard to the heavy reliance upon vegetative screening, a detailed landscape plan prepared by a suitably qualified landscape architect is required. E. Lighting Details A plan or specification detailing all required lighting accompanied by a report confirming compliance with AS 4282 - Obtrusive Effects of Outdoor Lighting is required. F. Wastewater An on-site sewage management capability statement for the existing wastewater treatment system is required. The statement should be from a suitably qualified on-site sewage design specialist and address the existing wastewater treatment device and effluent disposal area including the additional demand generated by the proposed use. The report should demonstrate the suitability of the existing system for the proposed development when assessed in accordance with AS 1547/2012 and NSW Environment and Health Protection Guidelines "On-site Sewage Management for Single Households". 1. The matter then came before the Registrar on 22 February 2018 and was fixed for hearing at Ballina Court house on 29 and 30 May. On 8 March 2018 by online Court the parties agreed to directions for the filing of evidence. This included expert evidence from town planners, traffic expert and acoustic experts. 2. After the hearing was allocated to me I conducted a telephone call over with the parties on 25 May 2018 in order to discuss the logistics of the site inspection at Pottsville which was scheduled to precede the court hearing. At that time there was complaint by the Council about the late filing of the applicant's evidence and the joint reports. Nonetheless, the hearing proceeded with the Council serving its draft conditions of consent on the morning of the hearing. At the site I received the oral evidence from the local objectors and inspected the site and adjoining property. Thereafter, the hearing resumed in the Ballina Court house. Over the luncheon break the applicant considered the Council's draft conditions and then indicated the matters it was prepared to accept or address by further amendments to the plans or the provision of further plans and reports. That said, the Council maintained a concern about the lack of relevant information and documentation. In particular, a concern that the applicant had not yet provided an adequate landscape plan, a Habitat Restoration Plan dealing with Koala habitat and a satisfactory Plan of Management (POM). Despite this the hearing continued and the evidence concentrated on the rural character and essential matters such as the type and size and number of trucks which the applicant intended to bring to the site; the number of employees and the hours of operation (T29/5 p4 ll34-38). It was the Council's position that these aspects of the operation of the business needed to be managed satisfactorily in order to avoid adverse amenity impacts. The Council was also concerned about safe ingress and egress from the site and the implementation of the traffic experts' recommendations as expressed in the joint report. It was agreed that these traffic matters needed to be addressed through revised plans. In particular, plans restricting the movement of trucks (greater than 8m in length) leaving the site and turning right. A left hand turn only movement had been recommended by the traffic experts and the plans dealing with the entry of the site needed to be amended to address this matter and other traffic safety issues (T29/5 p10, Ll34- 50 p 21 at Ll12-30) Further detailed landscape plans indicating species and the removal of certain structures including an existing concrete slab needed to be prepared. 3. It was not lost on the Court or the Council that most of the further information and plans discussed at the hearing had earlier been identified as necessary in the Council's contentions. 4. That said, the hearing continued in Ballina. However, it was not too far into the evidence before it became apparent that the plans showing the internal loop road (including the swept paths for vehicles) needed to be amended in order to ensure compliance with noise limits to minimise acoustic impacts anticipated by the acoustic experts report and the immediate neighbours. The applicant agreed to make these changes to the loop road and clarify its plans. Attention then turned to the POM proposed by the applicant. Put simply, it was a mess – full of inconsistencies and contradictions. Even the applicant's planner - whose office drafted the POM conceded this in oral evidence. For example, the POM referred to a demolition component of the business - and a civil contracting business requiring the storage of materials such as civil construction items, PVC pipes and fittings and general plumbing and civil fittings consumables on the site – (under the heading in the draft POM 4.3 Waste Control). This use was not part of the development application and the Council quite rightly insisted that this aspect of the business be deleted and the POM be amended to delete references to waste and litter control. (T29/5 pp39, 40, LL40). You will recall management of the operation of the site was a critical issue for the Council so the POM was very important. 5. The applicant's case was unravelling at the close of the hearing in Ballina so it was decided that the proceedings would be adjourned to allow the applicant to get its application in order. 6. A timetable was set for the additional plans and reports and the hearing was fixed to resume in Sydney at 4.15pm on a date convenient to the Court and parties. The first date of 20 June 2018 was ultimately vacated at the request of the applicant's solicitor on the basis of personal circumstances – while I accommodated that the vacation was not communicated to the parties before they attended the Court when they told me that they were not ready to proceed in any event. 7. The matter was then fixed for completion of the hearing on 26 June 2018. Again, at this time the applicant had failed to prepare the agreed documentation including additional plans and reports. The Council attempted to overcome the deficiencies by proposing draft operational conditions requiring the submission of further site plans dealing with such matters as: - the internal loop road; the traffic plan indication a left hand turn on Pottsville Road for all 8m long trucks and signage; a revised landscape plan and habitat restoration plan and amended POM – all before the issue of a construction certificate. I did not allow this. Again, the Court adjourned the matter to allow the applicant to provide this documentation and plans. 8. A further and final hearing date was set for 4.15pm on 25 July 2018. A time table was set for filing the material by 2 July. The applicant requested additional time and the Court allowed the applicant until 18 July. 9. On 24 July, the day before the hearing and outside the agreed timetable the applicant served and filed: 1. Amended landscape plan ( at 2.23pm) 2. On site sewerage management report ( 3.27pm) 3. POM ( 2.35pm) 1. On 25 July the day of the hearing an hour or so before it started the applicant served and filed: 1. Habitat restoration plan 1. Not surprising, having received these documents and plans just hours before the resumed hearing, the Council complained about a lack of time to assess the new documentation. And, while Mr Pickles indicated the Council thought that the onsite sewerage plan and landscape plan would probably be okay it pointed out the POM still contained the same inconsistencies. It still referred to the civil contracting business and storage of building components which were not part of this application. Moreover, the only detail about the amendments to the internal loop road (intended to carry all vehicles including 8m trucks) was to be found on the landscape plan. The road had not been dimensioned and there was no detail of swept paths for vehicles as requested by the Council and the Court. On instructions, the applicant invited me to compare the landscape plan with the earlier version to appreciate that it had in fact been moved to the south as required by the Council's draft condition 1.5 as recommended by the traffic and acoustic experts. I was also invited to note the new shape of the loop road. In saying this however, the applicant conceded that I had no information as to whether any vehicle could safely travel on this new road. 2. Needless to say I was flabbergasted, and when the applicant stated that the detail would need to be added and the POM amended again – necessitating a further adjournment I decided to dismiss the appeal. 3. My decision to dismiss the appeal in the circumstances I have outlined give flesh to provisions of s56 of the Civil Procedure Act 2005 and is consistent with the principles enunciated in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 4. Accordingly, the Court orders: 1. The Appeal is dismissed. __________________ S Dixon Senior Commissioner of the Land and Environment Court