Development appeal had 'chequered history'

Appeals for the development of the land on the corner of Veron Rd and Hillview St have had a chequered history, according to Mr Justice Neal Bignold.

The original phase occurred in June last year, with two days of hearings on the original application for a retirement village, which was a slightly more intensive form of development than that which finally went before the court.

The proposal included 43 units with a slightly greater building footprint overall.

As part of that hearing, the judge inspected the development site.

He also inspected another small area of Umina Coastal Sandplain Woodland (UCSW) located nearby in the grounds of Umina High School.

During the course of the original hearing, the applicant's expert witness on ecological issues gave evidence that, based on the extent to which she accepted the presence of UCSW on the site, a buffer zone to those areas of 10m was the minimum required to permit protection of the ecological community.

This represented a significant concession by the applicant which had originally promoted its case upon the basis that there was very little or no UCSW on the development site.

Such a buffer zone then required significant modification of the proposed development, according to the judgement.

On the basis of the evidence, the applicant applied for and was granted an adjournment to permit iit the opportunity to revise its plans to provide the buffer zone.

The judgement stated that council was opposed to the revision of the application and instead sought the dismissal of the appeal.

The hearing, based on revised plans, then resumed and was completed in December.

Prior to the resumption, the council had opposed the grant of leave for the applicant to rely upon the revised plans stating that the revision was a new proposal which should be processed again.

After leave had been granted to the applicant, the revision and the supporting Species Impact Statement (SIS) were publicly exhibited.

Having publicly exhibited the revised proposal and the SIS, the council maintained its opposition to the revised proposal, and raised objections to the legal adequacy and competency of the SIS.

It had been prepared on an "alternate" basis, accommodating the possibility that UCSW was more widely distributed on the development site than the more limited minor distribution that had been conceded by the applicant in the original phase of the hearing.

The report stated that the applicant "no doubt took this course in the knowledge that the court appointed expert, Ms James held, and expressed, the opinion that the distribution of the UCSW was throughout the development site".

The SIS for the revised proposal mainly concentrated on the scenario of a more limited distribution of UCSW on the site, but did suggest an alternate scenario of a widespread distribution of UCSW.

The report stated that "this feature of the SIS was naturally enough seized upon by the council at the hearing as demonstrating a perfunctory, token and inadequate appraisal of the alternate scenario".

The council's submission was that the SIS was legally inadequate and invalid on account of the deficiencies in its consideration of the impact of the revised development on the UCSW, if it were so widely distributed as the alternate scenario had recognised.".

Press release, February 17 Land and Environment Court