Karlos v Tweed Shire Council [2018] NSWLEC 164

Land and Environment Court New South Wales

Medium Neutral Citation: Karlos v Tweed Shire Council [2018] NSWLEC 164 Hearing dates: 22 and 23 March, 30 April and 12 and 13 September 2018 Date of orders: 24 October 2018 Decision date: 24 October 2018 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [177] Catchwords: MODIFICATION APPLICATION - application to Council to modify 2003 development consent for commercial water extraction - modification seeks approval to use 19-metre articulated tankers in lieu of 6-metre rigid tankers - application refused by Council - appeal against refusal - leave granted during hearing to amend modification application to seek further modification by removal of conditions having the effect, relevantly, of imposing a maximum annual volumetric rate of extraction on water for commercial purposes SCOPE Of PERMITTED DEVELOPMENT - development permitted by 2003 development consent specified in notice of determination by reference to Statement of Environmental Effects and plans lodged with development application in 2003 - the use specified in the 2003 consent not the use being carried out on the site in 2018 - nature of development being used for extraction in 2018 significantly different to that permitted by 2003 consent - no approvals for the changes in the operational development JURISDICTION - statutory test that a development, if modified, be substantially the same as the development original approved - jurisdiction must be engaged prior to consideration of any merit matters - proposed modification must satisfy test qualitatively and quantitatively - separate consideration of each element of amended modification application - modification seeking approval to use 19-metre articulated tankers fails jurisdictional test on qualitative and quantitative bases - modification seeking removal of volumetric water extraction limit fails jurisdictional test on two quantitative bases- no jurisdiction to approve modification application - no basis to apply amber light approach - appeal dismissed Legislation Cited: Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, s 4.55 Interpretation Act 1987 Roads Act 1993 Water Management Act 2000 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council; 11 Elvina Avenue Pty Ltd v Pittwater Council; Doering v Pittwater Council; 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Ireland v Cessnock Council (1999) 110 LGERA 311; [1999] NSWLEC 250 Modog Pty Limited v North Sydney Council [2018] NSWLEC 120 Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd 43 NSWLR 468; [1998] NSWSC 163 Vacik Pty Limited v Penrith City Council (1992) NSWLEC 8 Category: Principal judgment Parties: Larry Karlos (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: Mr H El-Hage, barrister (Applicant) Mr A Seton, solicitor (Respondent)