The facts of the case
The case is about an application filed by BGP Properties Limited against Lake Macquarie City Council. It is seeking to compel the latter to allow BGP Properties Limited to continue with its development plan on a site that is under the jurisdiction of the Council. The proposed site lies on the Southern side of Cowlishaw Street with its eastern side having an abandoned railway line and a track. On its western side, the site has a local open space reservation. The open space reservation is an area set aside for the purpose of environmental protection and adding aesthetic value to the land (McClellan 2004a). The applicant wants to subdivide this site for industrial use but the environmental concerns raised by the people living in this area and the council authorities have seen this move thwarted. The applicant is, therefore, seeking a court order that will allow it to proceed with its development plans. The application made by the applicant is in essence an appeal against the council for a ruling that s/he made denying the right to carry on with their development initiatives. The appeal was made pursuant to the Environmental Planning and Assessment Act otherwise known as the EPA Act. The specific development initiative being pursued by BGP Property will see the land being subdivided into 48 lots (from an original number of 54 lots) and these lots will be used for both industrial and storage purposes.
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In their submission, the applicant argued that the intended subdivision and industrial development project in the site will actually benefit both the locals and the environment and, therefore, it should be allowed to proceed with this development. The specific benefits that the locals would derive from this development project, as cited by the applicants, included the fact that the project would definitely result in the creation of employment opportunities in the area and the locals will be the greatest beneficiaries from this creation (McClellan 2004a).
On the environmental front, the applicant argued that the implementation of the project will result in a significant improvement of the existing drainage system of the land and emphasized this benefit with respect to the protection of ecologically sensitive areas within the site. In addition to the improvement of the site’s drainage systems, the applicant also argued that implementation of the project will also see them improve the quality of the land by removing weeds and other unwanted vegetation and this will be realized through the selective clearing of vegetation. Finally, the applicant submitted that the landscaping initiatives that will be undertaken by BGP Properties will significantly improve the quality and aesthetic value of the land. The landscaping will also involve the use of native seeds and propagules and this will help maintain the heritage and original value of the land.
On their side, the respondents made their own set of submissions on why the proposed development project by BGP Properties Limited was not environmentally sustainable. First and foremost, the respondents cited the impact of the proposed project on the Jewells Swamp Wetland as one of their core concerns with respect to the project’s implementation. The respondent argued that a proposal to construct a road through this area, if not carefully implemented, will have significant adverse effects on the wetland and, thus, affect the overall value of the land (McClellan 2004b).
In addition to the threat to the wetland, the respondent also submitted that the implementation of the project will inevitably result in a large tract of land being cleared to pave the way for the various industrial and storage activities proposed by the project. This will, therefore, result in extensive harm to the environment through the destruction of flora and fauna. Thirdly, the issue of noise from the heavy traffic that will be moving in and out of the construction site was also raised by the respondents who submitted that the proposed area is a relatively quiet area with very minimal traffic during the day and at night. A project of the scale proposed by the applicant will inadvertently result in a significant increase in traffic and this will effectively lead to noise pollution from the heavy traffic. The final submission that was made by the respondent concerned the proximity of the access road to Liles Oval and Ferleigh Track. They argued that the proposed access road to the site of the project was too close to these two recreational facilities which are often filled with children playing, and thus proceeding with the project as proposed will compromise the safety of the children.
What the court found or held
In light of all the aforementioned submissions made by both parties, the court dismissed the appeal made by BGP Properties Ltd. and denied consent to the company to proceed with its development of the site for industrial use. The courts also returned exhibits K, L, M, N, O, P, Q, AB, AC, AS, AT, 55, and 57.
The significance of the case for planning or development practice
The case with BRG Properties Ltd as the applicant and Lake Macquarie City Council as the respondent is an important one for planning and development practice. This case highlights some of the important issues that should be considered by developers in any development initiative that they set out to undertake. As highlighted by the case, a chief consideration in any development intuitive is the Environmental Sustainability of a development project. The submissions made by the respondent do indicate that the planned development initiative was not environmentally sustainable and this is why the case was ruled in favor of the respondent (McClellan 2004b).
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McClellan, J, 2004a, BGP Properties Pty Limited V Lake Macquarie City Council, Land and Environment Court of New South Wales.
McClellan, J, 2004b, Stockland Development Pty Ltd v Manly Council. NSWLEC, Land and Environment Court of New South Wales.