The NSW Land and Environment Court has overturned its previous decision to refuse a Construction Certificate Application to undertake site clearing works at South West Rocks.
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Kempsey Shire Council has been issued orders by the Land and Environment Court in relation to the further appeal by the developers of the Rise Projects site on Phillip Drive, South West Rocks.
Council has been notified to work with the developers to draft an agreed Construction Certificate by March 29, 2023, so the Court can issue it.
Craig Milburn, Kempsey Shire Council General Manager, said that this was a disappointing result mandated by planning laws in need of change.
"We understand that many in the community are frustrated by the tree clearing in South West Rocks being permitted under very old, "zombie", DAs," said Mr Milburn.
"Our Councillors have been vocal alongside Local Government NSW that the state government needs to amend the NSW Planning laws. Currently these zombie DAs are a burden to all councils.
"There should be a 5 year period development consent approvals when construction works must be substantially completed.
"Where works are not substantially completed, the consent should lapse and a new development application made and assessed on its merits."
A development consent was lodged by a different individual for a tourist resort on this site (Lot 2 DP1091323) with Kempsey Shire Council in 1991.
It was approved in 1993.
In late 2021 the current developer submitted an application to Council for a construction certificate to commence works on the site based on that 1993 approval.
Council did not issue a Construction Certificate on the basis that the developer did not adequately demonstrate they had substantially commenced work within the required five year timeframe of the 1993 development consent approval.
The developer filed an appeal against this deemed refusal in the Land and Environment Court and the case was heard in December 2021.
The Land and Environment Court ruling, published on 1 March 2022, found in Council's favour. The Court declared that the consent had lapsed and the application for a construction certificate be refused.
The developers then appealed that decision in late March 2022. This was heard in court in December 2022.
That court ruling published on Wednesday, March 22 2023, overturned the March 2022 ruling, requiring council to now issue a construction certificate for the 2021 application.
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