Avard v Clarence Valley Council

Ebsworth v Sutherland Shire Council [2005] NSWLEC 603; CASES CITED: Ervin Mahrer v Strathfield Council (No 2) (2001) 115 LGERA 259 ; Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292

APPLICANT Mr N Eastman SOLICITOR LEGAL REPRESENTATIVES: Clarissa Heugill & Associates RESPONDENT Mr J Maston SOLICITOR Pickering Priestley

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10863 of 2006 Gavin Avard v Clarence Valley Council

JUDGMENT 1 Her Honour: These are Class 1 proceedings appealing against the refusal by the Council of a concrete batching plant. This is a Notice of Motion dated 13 November 2006 seeking an amendment of a description in a development application ("DA") as follows: 1. By amending the development site to that shown delineated in the survey of Steve Brailsford dated 4 September 2006 and that the survey be incorporated as part of the development application documentation.

2. By amending the Development Application so that the third last paragraph on page 2 of the document headed "Additional Information for CVC DA No. 2005/5490" reads as follows: The annual production rate of the plant will be no more than 30,000 tonnes per year of concrete or concrete products. Production is expected to generate an average of 20 truck movements daily between 6am and 5.30pm, excluding Sundays.

2 It is agreed that the Court has power to amend the application by virtue of cl 55 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") and s 39 of the Land and Environment Court Act 1979 ("the Court Act"). Numerous cases have considered the issue of when it is appropriate to allow the amendment of a development application such as Ervin Mahrer v Strathfield Council (No 2) (2001) 115 LGERA 259, Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, and most recently Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 where her Honour held at [16] that: I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application.

3 The Applicant argued that he was seeking to clarify his DA by clearly identifying the area where the proposed development would take place and the amount of concrete intended to be produced to make clear that the application was not one for designated development in light of the provisions of cl 14 of Sch 3 and cl 47 of Sch 3 of the Regulation. 4 Clause 14 provides: (1) Concrete works that produce pre-mixed concrete or concrete products and: (a) that have an intended production capacity of more than 150 tonnes per day or 30,000 tonnes per year of concrete or concrete products, or (b) that are located:

(i) within 100 metres of a natural waterbody or wetland, or …

5 Clause 47 provides: The distance from a waterbody is to be measured as the shortest distance between: (a) the top of the high bank, if present, or (b) if no high bank is present, then:

(i) the mean high water mark in tidal waters, or (ii) the mean water level in non-tidal waters, and the boundary of the development site.

6 One of the reasons for refusal of the DA by the Council was that the proposed development is considered to be designated development and was not submitted in the prescribed form nor did an environmental impact study accompany the DA.

7 The Council opposes the amendment because it says that the original DA was for a larger area of land as identified in the existing site sketch plan accompanying the DA, which included an access road and water treatment and detention ponds that are clearly within 100m of James Creek. The new site plan is for a smaller area and there will now be no application for the use of the road and water detention pond, as indicated in the previous DA. The changes mean that there needs to be a fresh assessment of a new DA by the Council.

8 Further the Council argues the original application was for designated development (the Applicant disputes this) and the amendments change the development to non-designated. Finding 9 It is beyond the scope of the present proceedings for me to resolve whether the original development application was for designated development. The evidence was not directed to that question specifically, although raised in the Council's argument. Nor am I able to consider on the evidence whether the DA is an intensification of an existing development application granted in the 1970s, another issue raised in the Council's argument. These issues may continue as live issues regardless of whether I make the amendment sought. I do not form any conclusion on these issues in this motion. The resolution of those matters requires greater consideration of what is the "development site" of this DA. I do not consider I can resolve that issue here and will not therefore be making precisely the order sought in prayer 1 of the motion as it refers to the amendment of the development site.

10 The original DA states that the application is for the erection of a concrete batching plant and cement silo in accordance with plans attached. The land to be developed is identified in the DA form as Portion 182 DP 751388. 11 The Additional Information for CVC DA 2005/5490 document accompanying the DA states: The proposal involves the following: · Installation of a relocatable weather-proofed plant, including 6m3 capacity batcher, 55 tonne cement-capacity silo and batch room, onto and about the existing purpose-built footings and mountings; and · Installation of a relocatable building comprising office, lunch-room and en-suite areas together with wastewater disposal facility … The components will be installed to match the existing drainage and vehicle manoeuvring functions of the site, as shown on Figure 2. The functions have been established by the site's previous and continuing activities. The use of the existing footings and mountings positions the footprint of the relocatable plant at no less than 100m from the top of the bank of James Creek. The existing drainage maintenance function of the site will be assisted by the recycling of run-off treated in the ponds for re-use in production activities.

The annual production rate of the plant will be no more than 15,000m3 (that is, no more than 30,000 tonnes). Production is expected to generate an average of 20 truck movements daily between 6am and 5.30pm, excluding Sundays.

12 The last paragraph is the paragraph the Applicant seeks to amend in his Notice of Motion, prayer 2. 13 Figure 2: Existing site sketch in the Additional Information document shows the proposed buildings identified in the DA form and the narrative above in par 11 in relation to an existing access road and water treatment ponds. While the arguments focussed on Figure 2: Existing site sketch, the Figure 3: Site Plan attached to CVC DA 2005/5490 is the plan which is sought to be replaced by the survey plan referred to in prayer 1 of the Notice of Motion. It depicts a more limited area. The new plan identifies the same buildings in the same location as in the original Figure 3. It clarifies the position of the proposed development in that it outlines the development area as defined by the Applicant more precisely and shows that the proposed buildings are more than 100m from James Creek. 14 Ervin Mahrer, Ebsworth and Radray state that cl 55 is a beneficial and facultative provision.

15 The amendments sought by the Applicant do not result in a substantial change to the DA so that it should be considered a new DA. The new wording sought to be included in prayer 2 is in very similar terms to the existing application and I consider that amendment can be made. 16 The new site plan referred to in prayer 1 also does not alter the nature of the DA in terms of what is proposed. The amendment sought in terms in prayer 1 in relation to development site should be altered for absolute clarity as the issue of development site is potentially still outstanding, given the issues raised in argument. I consider that Figure 3: Site Plan attached to CVC DA 2005/5490 can be replaced by the survey plan of Steve Brailsford dated 4 September 2006 attached to the affidavit of Ms Huegill and will make orders accordingly.

Orders 17 The Court makes the following orders: 1. The Development Application be amended as follows: (i) Figure 3: Site Plan attached to CVC DA 2005/5490 is to be replaced by the survey plan of Steve Brailsford dated 4 September 2006 attached to the affidavit of Ms Huegill dated 13 November 2006.

(ii) The Development Application be amended so that the third last paragraph on p 2 of the document headed "Additional Information for CVC DA No 2005/5490" reads as follows: The annual production rate of the plant will be no more than 30,000 tonnes per year of concrete or concrete products. Production is expected to generate an average of 20 truck movements daily between 6am and 5.30pm, excluding Sundays.

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