Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 111

Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 111

On the evidence and statutory context, construction of fire trails at the proposed locations is permissible as the impact will be minimised, is not inconsistent with LEP and DCP controls, and is appropriate given cycleway/pedestrian pathway approval. Vegetation clearing within specified development precincts is permissible, subject to conditions that defers clearing until after detailed subdivision layout approval. Retention of windrows as a condition is justified based on prior ecological assessment and consent history, to preserve vegetation for future subdivision consideration. The proposed accessibility condition is rejected due to uncertainty, improper jurisdictional remittance, and...

Parties
Applicant: Lend Lease Communities (Wilton) Pty Ltd; Respondent: Wollondilly Shire Council
Jurisdiction
Australia
Judgment Date
30 August 2016
Procedural Posture
Class 1 Appeal / Principal Judgment, Post Hearing
Outcome
Appeal upheld; development consent granted subject to conditions; each party to pay own costs.
Legal Topics
Development Application, Vegetation Clearing, Fire Trails, Cycleways, Bushfire Protection, Accessibility, Prematurity, Subdivision, Environmental Protection, Local Environmental Plans, Development Control Plans
Planning and Environment Law Development Application Vegetation Clearing Fire Trails Cycleways Bushfire Protection Accessibility Prematurity +4 more

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Parties

Lend Lease Communities (Wilton) Pty Ltd

Applicant

Wollondilly Shire Council

Respondent

Procedural Posture

Class 1 Appeal / Principal Judgment, Post Hearing

Legal Issues

  1. 1 Whether proposed fire trails/cycleways/pedestrian paths in environmentally sensitive lands should be permitted and constructed as fire trails
  2. 2 Whether vegetation clearing should be approved at this stage or deferred until detailed subdivision applications
  3. 3 Whether retention of specific vegetation windrows should be imposed as a condition of development consent

Ratio Decidendi

On the evidence and statutory context, construction of fire trails at the proposed locations is permissible as the impact will be minimised, is not inconsistent with LEP and DCP controls, and is appropriate given cycleway/pedestrian pathway approval. Vegetation clearing within specified development precincts is permissible, subject to conditions that defers clearing until after detailed subdivision layout approval. Retention of windrows as a condition is justified based on prior ecological assessment and consent history, to preserve vegetation for future subdivision consideration. The proposed accessibility condition is rejected due to uncertainty, improper jurisdictional remittance, and...

Court Disposition

Appeal upheld; development consent granted subject to conditions; each party to pay own costs.

Orders

  • Development Consent granted to Development Application 010.2015.00000283.001 for: removal of vegetation within development precincts 1 Rural, 2 Fairways West, 3 Fairways East, 7 Bushland and 8 Golf Town; construction of pedestrian paths, cycle ways and fire trails within EP&R Lands and associated removal of maximum...
  • Each Party to pay its own costs of the proceedings.