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Casula community get their day in court

In their ongoing fight to save their streets from increased alcohol harm, the residents of the Sydney suburb of Casula have just scored a significant victory.

For two years now the Casula community have staunchly opposed the development application by a wealthy hotel investment group for a new hotel and gaming venue in their residential suburb.

Last week, on 23 March 2016, the Casula Community Group for Responsible Planning (CCGRP) won an application in the NSW Land & Environment Court (LEC) to be joined to the court process involving the Court’s consideration of a proposed pub Development Application.

Usually an appeal to the NSW LEC places two parties in a courtroom – the Council (decision maker in the first instance) and the party aggrieved by the decision. However, there are infrequent instances in which a third party can be joined to the matter on a limited number of grounds.

Before I explain the significance of this win, first a little background.

In September 2014, Liverpool City Council’s Independent Hearing and Assessment Panel unanimously recommended the refusal of a Development Application (DA) for a very large, hotel with gaming machines to be built in Casula on the busy Hume Highway. Their decision was based on the likely negative social impacts on the surrounding vulnerable community.

The DA was subsequently withdrawn by the developer.

On the afternoon of Friday 30 October 2015, the same developer lodged a new DA for a similar large hotel for their Casula site.

Coincidentally, Liverpool Council had, just prior to the receipt of the second hotel DA, adopted an innovative and relatively rigorous social impact assessment policy following widespread criticism of the inadequacy of the existing assessment process.

The first hotel DA attracted around 2,000 objections including over 500 on a petition from school kids from nearby Casula Primary, whilst the second DA attracted 1,500  objections including some in Arabic and Hindi.

The site of the proposed large hotel is on the busy Hume Highway. It is located within 140m of a large public primary school, public housing for elderly and disabled clients, a number of women’s refuges providing safe haven for women and children fleeing domestic violence, public emergency accommodation and other vulnerable sites.

Connected to Casula by the six lane Hume Highway and other major arterial roads are nearby suburbs with some of the highest rates of domestic violence, drink driving charges and Apprehended Violence Orders (AVOs) in NSW.

Under NSW Planning laws, the consent authority (usually a Council) has only 40 days in which to approve a DA regardless of its complexity, the alacrity of the proponent’s response to a Council’s request for additional information and the amount of community opposition.

Should a Council for whatever reason fail to approve a DA by the statutory deadline, the proponent can appeal the failure to approve, as if it were a refusal, to the NSWLEC. The Court, in effect, takes on the decision-making role of the Council including its advisory Independent Hearing and Assessment Panel.

Which brings us back to last week.

Liverpool Council did not oppose the Group’s joint application and their Council officers were not provided with the delegated authority to consent to the approval of the DA during private conciliation conferences.

Moore J.’s decision clarified the both the quantitative and qualitative basis upon which a third party can be joined to the court proceedings in a contested DA. In effect, a party seeking to join such proceedings must satisfy the Court that it would be bringing something new to the case, new evidence or interest that is not sufficiently covered or represented by the Council in its role as respondent.

In this case, His Honour was satisfied that the nature and extent of independent evidence related to alcohol harm prevention CCGRP was intending to rely upon, was sufficiently distinct from that of Council’s to enable the Group to become a party in the case.

This is a significant win in the NSW LEC because it sets a precedent for community groups who consider that the issues of concern to them are not being adequately represented by their local council in an appeal proceeding.

The negative community impact of the proposed development raises serious questions as to the suitability of the site for this kind of specific use which the CCGRP will now have an opportunity to present in court.

The timetable for hearing the merits appeal including a site inspection is soon to be set.

This case provides a fascinating and timely window into the inner workings of the NSW Planning legal system. The system is the important first step in the ultimate approval of the number and type of new liquor outlets or amended DA conditions to existing premises, the conditions attaching to them including trading hours and the level of liquor outlet density – all key contributing factors to the prevention of alcohol fuelled violence and related harms in NSW.

Tony Brown

Tony Brown is a PhD (Law) Scholar, Conjoint Fellow School of Medicine and Public Health, University of Newcastle. He is the Chairperson of the Newcastle and Hunter Region Multicultural Drug Action Teams. He voluntarily led and represented around 150 local residents, small businesses and concerned citizens in the complex legal proceedings initiated by the Police that led to the “Newcastle conditions”.

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