Council move to recoup court costs
Gosford Council staff have recommended the State Government be approached to recoup $40,000 in court costs, incurred from defending an appeal in the Land and Environment Court.
The Land and Environment Court has ruled that Gosford Council must allow a private boat ramp and jetty to be built at Empire Bay.
Council officers have said that the council was bound by law to refuse the application because two state government departments had not granted approval for the boat ramp and jetty.
The council had previously refused a Development Application (DA) for the project and the applicant appealed the refusal.
The DA was for the construction of a jetty and ramps at 64 and 66 Shelly Beach Rd, Empire Bay.
In the Land and Environment Court, the appeal by Chris Evans was upheld.
The applicant applied for integrated development consent.
Council must inform approval bodies that it is considering an application for integrated development.
The approval bodies, being Department of Lands and Water Conservation (DLWC) and FisheriesNSW, informed Council that they declined to give approval prior to the determination of the application.
At the time Council determined the development application, the applicant did not have the consent of the owner, DLWC, to the lodgment of a DA.
This consent was granted shortly before the Court heard the appeal, about one year after Council determined the application.
Because of the provision of the Act, council had no discretion but to refuse the application, according to council staff.
The application was refused because:
NSW Fisheries, as an Integrated Approval body, objected to the proposal and advised that a permit to reclaim any waters would not be issued.
The proposal did not comply with the requirements of the Brisbane Water Plan of Management
The proposal would remove existing public access to the waterfront and replace it with dangerous and restricted public access.
The proposed pathway was considered dangerous by both Council and the DLWC.
The proposed boat ramps were unsuitable in this location, did not comply with the requirements of Council, the DLWC or NSW Fisheries and would create a proliferation of waterfront structures along a short 30 metre section of waterfront.
The statement of effects submitted as part of the application was considered inadequate as it did not adequately examine the effects of the proposal, particularly the reduction or prohibition of public access to the waterfront on the community.
Overwhelming public objection existed to the proposal.
Approval of the proposal would not be in the public interest.
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Shortly before the appeal was heard, the applicant lodged with the Court modified plans that removed the ramp that was objected to by FisheriesNSW and Dept of Lands and Water Conservation (DLWC).
As a result, FisheriesNSW withdrew its objection to the integrated development two days before the hearing of the appeal and DLWC consented to the lodgment of the development application.
The court ordered a deferred commencement development consent be issued.
The applicant must seek approval from the Department of Lands to the application.
Council staff said council incurred the cost of the appeal partly because the approval bodies declined to give approval to the application for integrated development.
In a report to the council, council staff said that council had previously requested a contribution to the cost of an appeal from the Ministers responsible for the department that declined to issue its concurrence.
However in the earlier cases, the ministers declined to contribute.
"Council should again advise the Ministers of its concerns and request a contribution to this and similar future appeals," the report recommended.
Council agenda FS.124, August 26