Mayor suggests approaching Chief Justice

Gosford mayor Cr Robert Bell will ask Council tonight (Tuesday) to approach the Chief Justice of the NSW Land and Environment Court to review a case concerning the development of land at Bensville.

The case was recently lost to owners Les and Phyllis Sparks, with a ruling that the couple should be allowed to build on a part of their land which had been considered to be environmentally significant.

In a mayoral minute on the matter, Mayor Robert Bell stated: "The landowners, council, PlanningNSW (State Government) and National Parks & Wildlife Service (NPWS) (State Government) have spent the last 10 years planning and undertaking studies permitting development whilst protecting the environment.

"The community has worked to achieve an outcome for the area which was agreed to by all stakeholders.

"The plan for the region is being implemented and so far some residential development has taken place and some lands have been protected for the environment.

"The biggest disappointment about the court decision is that it undermines the confidence in the established basis for planning decisions being made.

"The court can choose to ignore the plan-making process by the community in partnership with the State Government and Council and claim its decisions are on a merit basis in isolation of the orderly approach to planning and agreements in place.

"This approach has been widely criticised by councils across New South Wales over the last 10 years.

"The decision-making of the court was the subject of a detailed taskforce review two years ago and a series of recommendations were made regarding the court.

"None of the major recommendations put forward by the taskforce to the Government were adopted.

"The court has continued to act as a replacement body to council-community decision making.

"It has no planning powers. It has no requirement for consultation with communities and it has moved far away from its original purpose.

"Its original purpose being to evaluate whether due process of councils has been undertaken.

"The court now ignores due process as a prime role and actively pursues merit assessment, an identical role of councils.

"Unlike councils, the court can ignore the history of zoning or give limited regard to the planning processes required by many Government agencies and councils to follow under various pieces of state legislation.

"A classic example is councils throughout the state have had their Development Control Plans (DCPs) ignored in some court decisions, grossly undervalued in others and in some cases DCPs have been so changed a Local Environment Policy (LEP) had to be undertaken.

"Further subsequent court decisions have led to councils going back from LEPs to DCPs as the basis for planning and decision making.

"As is patently clear, a lack of consistency in decision-making by the court is a major factor of concern to councils throughout the state.

The mayor has recommended that the council write to the Premier, the Attorney-General, the Minister for the Environment and Minister for Planning expressing dissatisfaction at the court choosing to override the DCP of council, a DCP developed following years of consultation.

In addition, the mayor seeks to write to the Local Government and Shires Association (LGSA) "expressing dissatisfaction that orderly development and confidence in the planning of regions is being undermined and eroded by such decisions of the court and requesting the LGSA to seek the government review the operations of the court".

Council Agenda MM.005, March 25