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(Rackemann DCJ - 27 February 2015)
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Planning and Environment – conditions to be imposed on approval granted by the Court – where conditions proposed by the Council included conditions as to hours of operation and lighting – where those conditions, as proposed, accorded with the evidence – where applicant sought to qualify those conditions so that they not apply in the event that its development comes to be used as part of a future project which is exempt development and the subject of conditions imposed pursuant to the State Development and Public Works Organisation Act 1971.
Facts: This matter concerned a dispute about two conditions proposed to be incorporated into a development approval of a concrete batching plant and pre-cast facility.
The Appellant had earlier successfully appealed against the Respondent's refusal of its development application. The parties were unable to resolve a disagreement over the wording for two of the conditions to be included in the conditions package to be annexed to the judgment.
The conditions in dispute concerned two issues:
- hours of operation (condition 7); and
- lighting (condition 8).
The Appellant submitted that it did not wish conditions 7 and 8 to apply in the event that:
- a new major project is added to the list of those projects which are categorised as exempt development under the Sustainable Planning Regulation 2009; and
- the effect is to render the use of the subject development (which will supply the project) as also being exempt development.
To overcome its concerns, the Appellant proposed amendments to the Respondent's conditions, which provided that conditions 7 and 8 would have no effect if the future projects envisaged did become exempt development.
Decision: The Court held, in declining to add the Appellant's suggested qualifications to the two conditions:
- The hypothetical projects envisaged by the Appellant, would require approval under the State Development and Public Works Organisation Act 1971 (SDPWOA), which had a mechanism to resolve conflicts between conditions of development approvals under the Sustainable Planning Act 2009 and SDPWOA.
- It is not for the Court, as a matter of discretion, to formulate conditions 7 and 8 in a way which seeks to plug perceived gaps (or arguable gaps) in the way that the legislature has chosen to deal with resolving the priorities between conditions imposed or required by the Coordinator-General's report pursuant to the SDPWOA and other conditions.
- It is better to set the condition of the subject approval by reference to what is appropriate on the basis of the evidence before the Court and leave such hypothetical matters for resolution by reference to the legislative provisions, as they might be at the relevant time, in the event that such an issue were to arise.