KIRRAWEE Centre Pty Ltd, the company behind a proposed development on the former brick pit site, has thrown down the gauntlet, saying it will see Sutherland Shire Council in court.
A council spokeswoman said the council had done all it could to accommodate the company and Land and Environment Court action would only delay the process.
Gymea Chamber of Commerce president, Ron Stapleton, had been at the forefront of community opposition to the development and said he was confident the council's position would be supported by the courts. ``You can only wait and see what happens now, I guess,'' he said.
"But I think if it goes to court, everything being fair, it will get knocked back.''
The company announced last week it would go to court over a deemed refusal of the development application for the site.
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A report to the council's planning committee two weeks ago said the assessment of the application would be finished within days, but so far, it had not been released.
Since the application was lodged in April and no decision has been forthcoming within the required processing time, the developers were within their rights to mount a court challenge.
Development manager, Gary Brown, said the company was frustrated by the council's lack of communication.
"We've wanted to work with council on this huge project, but to date, we have had no meaningful dialogue and the council refuses to sit down at the table and talk,'' he said.
Mr Brown said while the council might not have envisaged a development of the type proposed by the company, there was nothing in the original drafting of the development control plan to rule it out.
He said the draft changes were intended to stop a perfectly legitimate development. ``Council is moving the goalposts,'' he said.
"We purchased the property and lodged a development application that fully complied with all of council's strict planning controls.
"The council's planning officers ... never envisaged a shopping centre, and so to stop us, they are changing the rules after we've based and lodged our whole proposal on the current rules.''
The council had insisted on the highest levels of probity with the application and had responded to the developer's request to send the application immediately to the Independent Hearing and Assessment Panel, its spokeswoman said.
"This cannot occur now because the developer has been too quick to run to the courts,'' she said.
"The council will raise a number of concerns for consideration by the court including threatened species, urban design, traffic and impacts of the proposal on existing retail centres.''
The tipping point was a council decision last week to publicly exhibit draft changes to the Sutherland Shire Development Control Plan 2006.
Some of those changes related directly to the Kirrawee mixed use zone which included the brick pit site.
The staff report said those changes were intended to control the intensity and scale of development and "better reflect council's planning intent''.
According to the report, the changes were the third part of, what will be, at least a four-part amendment process, which was effectively the final step in the overall construction of the plan. ``What they are doing isn't fair,'' Mr Brown said.
"As a result of council's negative and aggressive actions we considered our only viable means of [taking this proposal further] was to begin legal proceedings against the council in the Land and Environment Court.''