Birdon Contracting Pty Limited v Hawkesbury City Council [2009] NSWLEC 1395

Birdon Contracting Pty Limited v Hawkesbury City Council [2009] NSWLEC 1395

The Court made the consent orders because the modified sand extraction development was, in qualitative and quantitative terms, essentially or materially the same as the approved development, including the same plant, operational controls, overall 2 million tonne extraction output, time limits and generally the same finished landform, and because the modifications would not significantly increase the environmental impacts of the total development. The objections about staging, groundwater, ecological modelling, dredge fines, the EMP and conditions did not justify refusing the consent orders.

Jurisdiction
Australia
Judgment Date
18 August 2009
Procedural Posture
Class 1 Development Appeal Concerning a Section 96 Modification Application for Development Consent DA 013/95 / Ex Tempore Judgment on Proposed Consent Orders
Outcome
Appeal upheld; section 96 modification application approved by consent; no order as to costs.
Legal Topics
['modification of Development Consent' 'sand Extraction' 'substantially the Same Development' 'designated Development' 'environmental Management Plan' 'consent Orders']
['planning and Environment Law'] ['modification of Development Consent' 'sand Extraction' 'substantially the Same Development' 'designated Development' 'environmental Management Plan' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Development Appeal Concerning a Section 96 Modification Application for Development Consent DA 013/95 / Ex Tempore Judgment on Proposed Consent Orders

Legal Issues

  1. 1 ['Whether the development as modified would be substantially the same development as the development for which consent was originally granted.' 'Whether the proposed modification would be designated development because alterations and additions significantly increase the environmental impacts of the total development.' 'Whether objections concerning the environmental management plan, draft conditions and council report justified declining to make consent orders.']

Ratio Decidendi

The Court made the consent orders because the modified sand extraction development was, in qualitative and quantitative terms, essentially or materially the same as the approved development, including the same plant, operational controls, overall 2 million tonne extraction output, time limits and generally the same finished landform, and because the modifications would not significantly increase the environmental impacts of the total development. The objections about staging, groundwater, ecological modelling, dredge fines, the EMP and conditions did not justify refusing the consent orders.

Court Disposition

Appeal upheld; section 96 modification application approved by consent; no order as to costs.

Orders

  • ['The appeal is upheld.' 'The application under section 96 of the Environmental Planning and Assessment Act 1979 is approved.' 'The development consent of Hawkesbury City Council numbered DA0134/95 dated 23rd day of December 1996 is modified.' 'No order as to costs.' 'The exhibits are returned.']