Ruddy v Tweed Shire Council

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".