Project Venture Management Pty Limited v Warringah Shire Council & Anor

Land and Environment Court (NSW)|2006-10-31|Before: Mr J, Ms J

The applicant says that, as a consequence of its intention to dedicate Lot 1 to public ownership, it ought be relieved of the burden of paying those contributions.

I am satisfied that the benefit of providing Lot 1 in public ownership is not merely a benefit to the public but it also confers substantial benefits on the applicant by removing from the applicant the burden of future maintenance of a substantial length of fire trail and it provides benefits in fire protection to the future residents of the subdivision.

I am satisfied that there is no basis upon which it would be reasonable to deny the council the benefits of its s 94 contributions plan and condition 18 will remain unaltered in the conditions of consent.

The second matter arises concerning condition 68 which is a requirement that there be a restriction on the keeping of cats, dogs and other livestock.

Although there was some discussion in the latter stages as to how one would define livestock in such a restriction, I am satisfied that an appropriate description for the purposes of me dealing with the matter is cats, dogs and other livestock of the type that would normally be notified to a Rural Lands Protection Board in an annual stock return - that is sheep, goats, alpacas, camels, horses, cows and what one might otherwise describe as large herbivores.

The applicant resists those elements that go beyond the banning of cats. The applicant is prepared to accept a restriction by way of a s 88B instrument, in favour of the council, prohibiting cats but resists one for all other animals.

However, at p 85 of the species impact statement prepared by Mr Travers, it is noted that cats and dogs should be excluded.

I am satisfied, on the basis of the delineation of the asset protection zones condition (being that which is contained in cl 39 as to the creation of the fencing and cl 64 as to its maintenance), that the fence is one which will permit fauna such as the bandicoot or the Rosenberg goanna to be able to access the inner access protection zones and that, in the interests of protecting that threatened fauna, it is appropriate that not merely cats but also dogs be banned from the subdivision.

With respect to the larger herbivores, I have carefully considered the terms of the material contained in Exhibit C (which is the stormwater management plan report).

I am unable to be satisfied, on the basis of the material contained in that document, that the stormwater management measures proposed for the site would provide an adequate protection from the transmission of nutrients in run off from the site, from the droppings of large herbivores, if they were to be permitted to be kept on the site. I also have concerns (but I have no evidence about it) that there might not be sufficient area for such animals.

As a result of not having evidence, I take no regard to that point - although it was put to me by way of submission on behalf of the second respondent (but only in passing).

I am satisfied that, with respect to the keeping of large herbivores, the applicant has not provided a sufficient basis upon which I could be satisfied that it would be an acceptable activity to be permitted.

Finally, although I accept that there are likely to be undesirable impacts on the animals at Waratah Park, I do not consider that this, in itself, warrants refusal given that the redesigned proposal lessens the overall intensity of the development in the south-western quadrant of the site. Absent any other issues of significance which could also contribute to warranting refusal, I propose to require a special condition to be inserted which may assist the management of Waratah Park to cope with these impacts.

On this point, during the earlier phase of the hearings, I canvassed with Mr McEwen SC, for the applicant, on a contingent basis, the possibility, if a consent were granted, of requiring advance notice to the management of Waratah Park of works near the shared boundary. As I recollect, Mr McEwen indicated that this was likely to be acceptable.

The conditions shall, therefore, require that 24 hours notice be given to the management of Waratah Park prior to the commencement of any element of the works on Lots 5, 6 and 7 or on the access road, along the boundary with Waratah Park, serving these Lots.

The consequence of that is that the orders of the Court will be that the appeal will be upheld and that development for a subdivision of the site of six residential allotments and one community dedicated allotment will be granted consent subject to development conditions that remain to be settled between the parties as a consequence of this decision.

I therefore need to give the following directions: 1. The applicant is to file and serve a revised plan of subdivision reflecting the matters dealt with in this decision and in the final version of the concept plan. The plan of subdivision is to be filed and served by the close of business on 10 November; 2. The first respondent is to file and serve revised conditions of consent reflecting this decision and filed in accordance with Practice Direction 2 of 2005 and a separate email to the Court notifying the Court that they have been filed. This is to occur by the close of business on 10 November; 3. The matter is set down for callover on 16 November; 4. Liberty on two days to re-list the matter before me by any party if there is any dispute about matters arising out of directions 1 and 2; and 5. If directions 1 and 2 are complied with, then I will make orders in chambers and vacate the callover.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Project Venture Management Pty Limited v Warringah Shire Council & Anor [2006] NSWLEC 754

Project Venture Management Pty Limited v Warringah Shire Council [2006] NSWLEC 753; CASES CITED: Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656 ; Mete v Warringah Council [2004] NSWLEC 273; Mison v Randwick Municipal Council (1991) 23 NSWLR 734

The LEP is an unusual document, being a document that does not have a conventional land use zoning table contained in it, although as I held recently in Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656 (consistent with a decision of Talbot J in Mete v Warringah Council [2004] NSWLEC 273), the locality statement and associated elements contained in it are, although not a conventional zoning table, nonetheless an unconventional zoning table and each of the localities can appropriately be regarded as a zone.

At a glance

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Judgment (18 paragraphs)

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Cases Cited (5)

Cited By (1)