'No nexus' for Empire Bay approval

Gosford Council has been told it cannot take lack of compliance with a previous approval into account when considering a new development application.

The council could not take Land and Environment Court orders into account when assessing a new development application for refreshment rooms at the Empire Bay Service Station, council staff have stated in a development assessment.

Responding to objections lodged to the proposal, council staff reported: "There is no nexus between the consent issued by the Land and Environment Court for the existing service station and this development application.

"This application has been assessed on its merits.

"This application is not bound by the Land and Environment Court approval for the existing service station," councilors were told in the staff report.

"However, no construction, clearing, mowing or any other disturbances will be permitted within the bushland buffers required by the Court's consent."

"A private certifier for the service station development issued an Interim Occupation Certificate prior to the service station commencing trading.

"To date, a Final Occupation Certificate has not been issued.

"This does not preclude determination of the current application."

Council staff did concede that bush regeneration had not complied with the court orders.

"The matter of the bushland regeneration not having been completed in accordance with the Land and Environment Court approval has been referred to Council's education and compliance section for follow up with the private certifier responsible for the service station certification."

Council staff also indicated that it would investigate claims that traffic calming measures had not been implemented as required by the court.

"Council was not the Principal Certifying Authority for the service station development.

"The matter will, however, be forwarded to Council's Education and Compliance Unit for investigation."

Responding to criticism that the buildings were within one metre of the bush regeneration zone, council staff stated: "Commercial buildings do not require bushfire asset protection zones.

"It is considered that sufficient space is available for maintenance purposes.

"A condition of consent requires that construction fencing be erected during construction to prevent any intrusion into the designated bushland buffer areas and that a suitable permanent fence be erected, prior to occupation of the development, preventing access to the bushland buffer zones.

"The application was accompanied by a bushfire risk assessment and has been reviewed by the NSW Rural Fire Service.

"The development is considered to be satisfactory from a bushfire risk perspective."

The report stated: "The proposal is consistent with LEP 351 and DCP 98 as well as being considered generally consistent with other relevant DCPs and Council Policies and is consistent with the aims and objectives of SEPP 71 and the matters listed for consideration in Clause 8 of the SEPP.

"The application has been considered by the RTA and RFS and is supported subject to conditions.

"The application has been assessed by relevant Council officers and found to be satisfactory.

"The application has been assessed having regard to the Land and Environment Court approval of the service station existing at the site.

"Public submissions received in response to advertising of the application have been considered in the assessment of the application.

"Having considered all relevant matters the application is recommended for approval," the council staff report stated.

Gosford Council Agenda ENV.60, 27 Sep 2011