132Cordeaux Pty Ltd v Wollongong City Council

[2022] NSWLEC 1644

Land and Environment Court

New South Wales

Medium Neutral Citation:

132Cordeaux Pty Ltd v Wollongong City Council [2022] NSWLEC 1644

Hearing dates:

Conciliation conference on 19 October 2022

Date of orders:

23 November 2022

Decision date:

23 November 2022

Jurisdiction:

Class 1

Before:

McEwen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendment in the sum of $3,000.00.

(2) The appeal is upheld.

(3) Development application no. DA-2021/463 for a thirty-eight (38) lot residential subdivision of land at Lot 1 DP 534849, 132 Staff Road, Cordeaux Heights and associated works including roads, tree removal, earthworks, drainage, utilities infrastructure and landscaping is determined by the grant of consent subject to the conditions set out in Annexure ‘B’.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.2

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, ss 34, 39

Rural Fires Act 1997

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021

State Environment Planning Policy (Biodiversity and Conservation) 2021, ss 4.2, 4.9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Water Management Act 2000

Wollongong Local Environmental Plan 2009, cll 2.6, 5.10, 5.21, 6.1, 6.2, 7.1, 7.2, 7.4, 7.5, 7.6, 7.8

Category:

Principal judgment

Parties:

132Cordeaux Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
K Mortimer (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2022/182938

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of development application no. DA 2021/463 (DA) by Wollongong City Council (respondent).

2. The DA was lodged with the respondent on 6 May 2021 and subsequently amended. The appeal was filed on 23 June 2022, within the time limit prescribed by s 8.10 of the EPA Act.

3. The appeal falls within Class 1 of the Court’s jurisdiction. The statutory power and function to be exercised is contained in s 4.16 of the EPA Act.

4. The DA, as amended, seeks development consent for a 38-lot residential subdivision of land and associated works at 132 Staff Road, Cordeaux Heights (site).

The conciliation conference

5. The Court arranged for the appeal to be determined pursuant to the provisions of s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference.

The parties’ agreement

6. At the conciliation conference, the parties reached agreement as to the terms of a decision which would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to an amended DA subject to conditions. A signed agreement was filed with the Court on 1 November 2022.

7. The amended plans, which now form part of the DA, have been lodged on the NSW Planning Portal with the agreement of the respondent, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

Satisfaction of jurisdiction

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. There are jurisdictional pre-requisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional pre-requisites of relevance in a joint jurisdictional statement and explained how those pre-requisites have been satisfied. The matters of relevance and the parties’ explanation as to their satisfaction, are summarised below.

Owner’s consent

10. The applicant is the registered proprietor of the site. It has provided owner’s consent to the lodgement of the DA.

11. The DA proposes the construction of a road (Staff Road – Road 1) over a portion of an unformed public road that traverses the site.

12. The respondent is the owner of that unformed road. Section 39(2) of the LEC Act provides the Court with the respondent’s functions of giving owner’s consent to that work pursuant to cl 49(1)(b) of the EPA Regulation.

Public notification

13. The DA has been notified on two occasions:

1. On 26 May 2021, the DA was notified to neighbouring properties for a 30-day period, and also advertised in accordance with the Wollongong Community Participation Plan.

2. On 14 November 2021, the DA was re-notified for a period of 14 days.

14. The submissions received in response to public notification have been provided to the Court and have been considered together with two submissions made on-site on 10 October 2022.

15. The DA was also notified to local Aboriginal groups. No response was received.

Biodiversity Conservation Act 2016 (BC Act)

16. Part 7 of the BC Act does not apply as the DA is not likely to significantly affect threatened species within the meaning of s 7.2(1) of the BC Act.

Integrated development

17. The DA is an integrated development application and seeks approvals pursuant to the Rural Fires Act 1997 and Water Management Act 2000.

18. The Rural Fires Service provided General Terms of Approval and a Bushfire Safety Authority pursuant to s 100B of the Rural Fires Act 1997 dated 26 October 2022.

19. The Natural Resources Access Regulator provided General Terms of Approval pursuant to the Water Management Act 2000.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

20. Chapter 4 of BC SEPP applies to the site. Section 4.9 sets out the development assessment process, as there is no approved koala plan of management applying to the site.

21. Before development consent is granted to the DA, the respondent must assess whether the proposal is likely to have any impact on koalas or koala habitat.

22. However, s 4.9(5) of the BC SEPP provides that:

… the council may grant development consent if the applicant provides to the council—

(a) information, prepared by a suitably qualified and experienced person, the council is satisfied demonstrates that the land subject of the development application—

(i) does not include any trees belonging to the koala use tree species listed in Schedule 3 for the relevant koala management area, or

(ii) is not core koala habitat, …

23. Section 4.4.2 of the Flora and Fauna Assessment contained at Tab 9 of the Class 1 Application states that the study area does not contain any koala use tree species, nor is the study area within 2.5km of a koala record from the past 18 years (being the definition of ‘core koala habitat’ in s 4.2 of the BC SEPP).

24. As a result of this information, the Court can be satisfied pursuant to s 4.9(5) of the BC SEPP that development consent can be granted.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

25. Section 4.6 of RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

26. The DA was accompanied by a detailed site investigation prepared by Environment & Natural Resource Solutions (DSI).

27. The DSI concludes that the site is suitable for the proposal.

Wollongong Local Environmental Plan 2009 (LEP)

Permissibility

28. Land the subject of the LEP may be subdivided with development consent: cl 2.6.

29. The site comprises three zones: C2 Environmental Conservation, C3 Environmental Management and C4 Environmental Living.

30. No works are proposed in Zone C2. The proposal is primarily located within Zone C4, with limited development in Zone C3.

31. Development for the purposes of roads is permitted with development consent in both Zone C3 and C4. Otherwise, the DA proposes works for the purposes of subdivision.

Minimum lot size

32. The minimum lot size for land zoned C4 is 999m², and for land zoned C3 is 3999m². The proposed lots all comply with the minimum lot sizes, as set out in Lot Layout Plan, Drawing Number: ISC00366-10-C005, Revision 6 dated 17 October 2022.

Heritage conservation

33. Clause 5.10(2)(f) of the LEP requires development consent to subdivide land on which a heritage item is located or that is within a heritage conservation area, or on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. Clause 5.10(4) contains matters for consideration if cl 5.10 applies.

34. The site does not contain any heritage items, nor is it located within a heritage conservation area.

35. The site does not contain any Aboriginal places of heritage significance. No Aboriginal heritage study adopted by the Council applies to the site. Consequently cl 5.10(8) of the LEP does not apply.

36. The site does contain four Aboriginal cultural heritage sites, as set out in the Aboriginal Cultural Heritage Management Plan prepared by Austral Archaeology Pty Ltd dated 23 February 2022, at Tab 17 of the Class 1 Application.

37. The Aboriginal cultural heritage sites are located outside of the development footprint (noting that the total Site area is approximately 54.98ha).

Flood planning

38. The DA was lodged on 6 May 2021. On 14 July 2021, cl 5.21 was inserted into the LEP by the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021.

39. The DA is saved from consideration of cl 5.21 by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006.

40. Former cl 7.3 of the LEP (Flood Planning) also does not apply. Former cl 7.3 was repealed by the State Environmental Planning Policy Amendment (Flood Planning) 2021, which did not include a savings provision.

41. As a result of the above, flood planning matters are not jurisdictional requirements for this DA. Flooding considerations have been considered as a matter of public interest. The proposed residential lots will be above the flood planning level, and all nominated building envelopes are outside of the 1 per cent AEP design flood extents.

Urban release area

42. Clauses 6.1 and 6.2 of the LEP do not apply to the site.

Public utility infrastructure

43. Clause 7.1 requires the consent authority to be satisfied that any public utility infrastructure that is essential for the proposal is available or that adequate arrangements have been made to make that infrastructure available when required.

44. Section 3.6 of the SEE explains how water and electricity will be provided to the proposal, and how sewage will be disposed and managed.

Natural resources sensitivity – Biodiversity

45. Clause 7.2 of the LEP applies to land identified as “Natural resource sensitivity—biodiversity” on the Natural Resource Sensitivity—Biodiversity Map.

46. The site contains identified land but no development is proposed on land mapped as “Natural resource sensitivity—biodiversity”.

Riparian lands

47. Clause 7.4 of the LEP applies to land shown as “riparian land” on the Riparian Land Map.

48. The site contains land mapped as ‘Riparian Land’. Clause 7.4(3) requires that:

development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land.

49. The impact of the proposal on the riparian land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land are addressed in the material filed with the Court.

50. On the basis of these documents, the Court can be satisfied that the matters specified in cl 7.4(3) have been considered.

51. The parties also note that the Natural Resources Access Regulator has provided General Terms of Approval dated 14 July 2021.

Acid sulfate soils

52. The site is not located on the Acid Sulfate Soils Map made pursuant to cl 7.5.

Earthworks

53. Clause 7.6(3) of the LEP specifies matters that must be considered by the consent authority before granting development consent to earthworks. Those matters are addressed in the material filed with the Court and have been considered.

Illawarra Escarpment area conservation

54. The site is mapped on the LEP’s ‘Illawarra Escarpment Map’, Sheet ESC_006.

55. Clause 7.8(3) of the LEP requires that development consent must not be granted to development within the Illawarra Escarpment area unless the consent authority is satisfied that the development:

(a)  will be located so as to minimise any adverse impact on the natural features and environment of the Illawarra Escarpment, and

(b)  will incorporate on the land, conservation and rehabilitation measures to enhance the Illawarra Escarpment.

56. In response to a request for further information from the respondent, the applicant provided a visual impact assessment dated October 2021 prepared by SLR Consulting.

57. The visual impact assessment contains a viewshed analysis and photomontage analysis. It concludes that the proposal is ‘not anticipated to create a significant visual impact and will not detract from the visual primacy of the Illawarra Escarpment.’ On the basis of this document the Court can be satisfied as to cl 7.8(3)(a) of the LEP.

58. The Vegetation Management Plan dated 13 September 2022 contains a number of conservation and rehabilitation measures. On the basis of this document the Court can be satisfied as to cl 7.8(3)(b) of the LEP.

59. Based upon the above matters, and as required by s 34(3) of the LEC Act, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions.

Disposal of proceedings in accordance with the parties’ decision

60. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

61. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

62. The Court notes:

1. The respondent as the relevant consent authority has agreed pursuant to cl 55 of the EPA Regulation to the applicant amending the development application no. DA-2021/463, the subject of these proceedings, to rely on the documents specified in Annexure ‘A’.

2. The applicant uploaded the amended application on the NSW Planning Portal on 27 October 2022.

3. The applicant filed the amended application with the Court on 2 November 2022.

63. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendment in the sum of $3,000.00.

2. The appeal is upheld.

3. Development application no. DA-2021/463 for a thirty-eight (38) lot residential subdivision of land at Lot 1 DP 534849, 132 Staff Road, Cordeaux Heights and associated works including roads, tree removal, earthworks, drainage, utilities infrastructure and landscaping is determined by the grant of consent subject to the conditions set out in Annexure ‘B’.

……………………….

C McEwen

Acting Commissioner of the Court

Annexure A (284631, pdf)

Annexure B (1358191, pdf)

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Decision last updated: 23 November 2022