Jonathon v Kyogle Council

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant, by notice of motion, seeks leave to rely on amended plans in this Class 1 appeal against Kyogle Council's deemed refusal of a development proposal for 22 affordable house sites, community buildings and access roads at 1411 Afterlee Road Eden Creek. 2The original application was lodged with council on 12 October 2010. The application was advertised and later re-exhibited for administrative reasons. Notification letters were sent to adjoining properties. The exhibition period ended on 10 January 2011. Nine submissions and one petition were received. 3The council consulted with, and received responses from, the state government agencies of the Rural Fire Service, the Catchment Management Authority and the Department of Services, Technology and Administration. 4Kyogle council requested additional information from the applicant to be submitted at various times from October to December 2010. 5As the Development Application was not determined in the prescribed time, the applicant lodged the appeal with the Court on 6 January 2011. 6The Court's file notes show that the matter proceeded through a process of case management and directions were given for the service of relevant documents. An issue arose in March 2011 where a proposed access road through an adjacent wildlife reserve could not proceed. Council required a final bushfire management plan to assess. 7On 28 April 2011, Registrar Grey granted leave, via a notice of motion, for the applicant to amend the development application in accordance with supplementary bushfire information to the Bushfire Management Plan prepared on behalf of the applicant. The applicant was to pay the respondent's costs of the Notice of Motion. I note that the parties agreed that the amendments were minor. The plan is the consolidating plan dated 7 May 2011. 8This plan shows 3 precincts. Precinct 1 is along the narrow access handle and comprises 6 dwelling sites and a community building. Precinct 2 with 8 dwellings, and Precinct 3 to the south with 8 dwellings. The road network, dams and other facilities are identified. The notes on this plan indicate where the position of dwellings has been altered from the original plan in response to bushfire issues. 9During the progress of the matter, it appears that a number of modifications arose through expert reports. A summary table prepared by the council for this Notice of Motion hearing tracks the changes. 10A section 34 conciliation conference was held on 17 May 2011. The conciliation conference commenced with a site view and returned to Kyogle council chambers. As a result of discussions between the parties, the s 34 conciliation conference was adjourned until 16 August and a timeline set for the gathering of more information by the applicant and its assessment by the council. 11In response to matters arising from the conciliation process and discussions between the parties, the parties agreed to a modified plan but this was not formally put to the court via a Notice of Motion. This plan shows some changes in the location of the road network. Precinct 1 is reduced to 3 dwelling sites and a community building; precinct 2 retains 8 dwellings although in slightly different positions; precinct 3 is expanded to 11 dwellings at closer spacings. This is amended plan 22/08/11 and was the plan before the council and now before the court in the substantive proceedings in this appeal. 12On the 16 August, the s 34 conciliation conference was further adjourned until 26 August. On that date, it was determined that no agreement could be reached by the parties and, given the generous extension of time already allowed, the s 34 conciliation was terminated. 13On 5 September, the Acting Registrar set the hearing down for 12-13 October. The parties were directed to file an agreed timetable by 9 September which they did. Expert witness reports were prepared and joint conferencing occurred. 14On 10 October 2011, two days before the hearing, the applicant sent an urgent fax to the court requesting the hearing dates be vacated. The Acting Registrar advised the applicant that this should have been addressed via a Notice of Motion and supporting affidavit and that I was out of Sydney that day and therefore could not attend to the matter that day. The applicant's reasons for seeking the vacation of the hearing related to inadequate time for the completion of expert reports, and what he says, was advice from the council to their experts not to consider the applicant's reports on biodiversity and fire management. 15On 11 October there was a telephone mention with the parties. The council opposed the vacation on the basis that experts and advocates were prepared. The Court refused the request to vacate the dates given the extremely short notice and lack of process. 16During the discussions it became clear that the applicant's experts had prepared an alternative plan for the site. This, the applicant says, was in direct response to the council's amended statement of facts and contentions. In those amended contentions, the council considers that the issues relating to the bushfire assessment and safety reports as well as the native vegetation/ biodiversity assessment reports remained; and despite the additional information those matters still had not been addressed to council's satisfaction. The council indicated that the plans prepared by the applicant's experts (the alternative plans) were not the plans before the council or the Court and therefore could not be formally considered. I agreed with the council and indicated to the applicant that they were not formally agreed plans but could nonetheless be considered on site. 17The alternative plans show an extension of the access tracks around the perimeter, slight changes in the arterial roads and internal access tracks. Precinct 1 retains 3 dwellings but loses the community building; Precinct 2 shows 8 dwellings in different positions and a community building; Precinct 3 shows a revised alignment of the 11 dwellings and a community building. At the site inspection during the hearing, we viewed the locations of the dwellings according to the alternative plan rather than the plan before the Court. 18At the hearing, the applicant formally sought leave to amend the plans. While Mr Atkins for the council agreed that the proposal could be considered an improvement, the amendment was opposed by the council on the basis that council's experts had not had an adequate opportunity to assess the plans and this would prejudice their position. In addition, the usual process of a Notice of Motion had not sought the amendment. The Court agreed with the council and the request was refused. The applicant was given the option to proceed on the basis of the plans before the court (ie. as amended 28 April 2011) or to discontinue the proceedings and lodge a new application with the council. Given the fact that the applicant is self-represented and access to legal advice was not readily available to him, the hearing was adjourned. 19The plan dated 28/10/11 now before the court via a Notice of Motion shows the reduction in the number of dwellings from 22 to 16. Precinct 3 has been deleted from the application. Precinct 1 retains 3 dwellings and the area of precinct 2 has been expanded to accommodate 13 dwelling sites and a community building capable of providing refuge in a bushfire for 80 people. There appears to be a slight change to the road alignment.