A Warnervale landowner and Central Coast Council are facing their third round in the Land and Environment Court over a development application to clear land at 130-134 Sparks Rd.
Landowner, Pastoral Investment Land and Loan Pty Ltd, won an appeal in the Land and Environment Court in July 2020, which meant that the matter would go back for another adjudication which was set for February 9, 10 and 11.
The court case started in 2018 after Council agreed in 2017 to support a subdivision but refused to allow the land to be cleared.
Pastoral had put in a development application to Council to subdivide two existing lots.
The company wanted to change boundaries to create two new lots that would align with the boundaries of the two zones applying to the site, one being Industrial and the other being Environmental Conservation.
Pastoral then wanted to clear native vegetation over that part of the site zoned Industrial and had a concept proposal for a landscape supply business and self-storage units on that part of the site.
Council agreed to moving the boundaries, but it did not allow the clearing of native vegetation or any land use.
Council’s consent, on August 7, 2018, stated that there was to be no clearing of native vegetation nor was there any physical works or land use included.
Council said any future development would require further development applications that would include details for water, sewer, vehicle access, stormwater management and electricity.
Pastoral appealed to the Land and Environment Court on November 5, 2018, seeking permission to clear the land.
Three days were set aside in March 2020 for the hearing.
The case started with a visit to the Warnervale site.
“The Senior Commissioner, the parties’ legal representatives and the parties’ experts, including ecologists, observed the boundaries of the site, the areas to be cleared of native vegetation, the different ecological areas and habitats within the site, the buffer zones proposed and the access points for construction vehicles,” the Judgement states.
The hearing resumed in the Land and Environment Court in Sydney later that same day and Pastoral asked for an adjournment.
Despite a 100 page initial ecological assessment, Pastoral realised that it had failed to include an assessment on whether the proposed clearing of native vegetation was likely to significantly affect identified threatened species of fauna, in particular, the two threatened species of owl, which was an issue raised by Council.
Rather than allow the adjournment to give the company time to do the assessment, the Court dismissed the case on a point of law.
Pastoral Investments appealed.
The appeal was heard in June 2020 and a decision was made in July to uphold the appeal.
And so, the matter is now again before the same commissioner in the Land and Environment Court.
It expected that the updated ecological issues will be tabled at this latest court appearance.
Meanwhile, the parties have also appeared in the Supreme Court.
The former Wyong Council entered into a Deed of Agreement with Pastoral Investments in 2006 which would have seen the majority of the site, the land zoned Environmental, given over to Council.
In essence, the Deed sought the dedication of all environmental conservation land to Council, once part of the site was zoned to Industrial.
The site was rezoned in 2008 as part of the greater Wyong Employment Zone (WEZ), with 21ha identified for conservation and the other 3ha for development.
In October 2018, Central Coast Council commenced action in the Supreme Court to enforce the Deed.
The failed attempt in the Supreme Court now casts doubt over land transfers, according to Chris Smith, the consulting town planner acting for Pastoral.
“Pastoral feels it’s a situation of double or even triple dipping, whereby the transfer of 21ha isn’t being recognised as a conservation measure,” he said.
“Instead, Council would accept the land, then require Pastoral to undertake further environmental assessments and possibly reduced area industrial potential to what was agreed in 2006, then have to pay further environmental credits to undertake any clearing of the remaining 3ha.
“We are perplexed as to why Council is going to so much effort and expense to prevent clearing of a 3ha portion of a 24ha site, land that is within the Wyong Employment Zone and zoned for job-creating industrial use,” Smith said.
Sue Murray and Merilyn Vale