AB Rise v Port Stephens Council

[2025] NSWLEC 1161

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

AB Rise v Port Stephens Council [2025] NSWLEC 1161

Hearing dates:

Conciliation conference on 3 September 2024

Date of orders:

18 March 2025

Decision date:

18 March 2025

Jurisdiction:

Class 1

Before:

Nichols AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application 16-2023-583-1, as amended includes the subdivision of the existing lots into 34 residential lots and 5 residual allotments, provision of internal access roads, ancillary earthworks, stormwater management infrastructure including infiltration basins; and a bioretention basin at 263 - 321 Gan Gan Road, Anna Bay.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act (1979) the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.

Catchwords:

APPEAL – development application –residential ­subdivision – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.7, 7.2, 7.4, 7.13

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 4.47, 8.7

Land and Environment Court Act 1979, s 34

Local Land Services Act 2013, Pt 5B, s 60O

Roads Act 1993 (Roads Act), s 138

Road Transport Act 2013 (RT Act), s 122

Rural Fires Act 1997, s 100B

National Parks and Wildlife Act 1974, s 90

Biodiversity Conservation Regulation 2017, cl 7.2

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Port Stephens Local Environmental Plan 2013, cll 2.1, 2.3, 2.6, 2.7, 4.1, 4.1D, 5.10, 5.16, 5.21, 5.22, 6.2, 6.3, 6.5, 7.1, 7.2, 7.6, 7.9, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 4, 6, ss 2.3, 2.7, 4.4, 4.8, 6.1, Sch 2

State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, 3.6, Sch 5

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.125, 2.126, 2.138, 2.48

Cases Cited:

HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135

Texts Cited:

Planning for Bushfire Protection 2019

Port Stephens Development Control Plan 2012

Category:

Principal judgment

Parties:

AB Rise Pty Ltd (Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
M. Sonter (Applicants)
M. Caban (Respondent)

Solicitors:
Mills Oakley (Applicants)
Local Government Legal (Respondent)

File Number(s):

2024/61618

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal of Development Application DA 16-2023-583-1 by Port Stephens Council lodged on 12 October 2023. This appeal concerns a development application for the subdivision of existing lots into 47 residential lots, including the provision of internal access roads, ancillary earthworks, and stormwater management infrastructure including two infiltration basins, and a bioretention basin. The current land description includes Lot 21 DP 590387, Lot 901 in DP 634550, Lot 902 in DP 634550, and Lot 1 in DP 503876.

2. The development proposes subdivision of the existing 4 lots into 47 Torrens title lots, including drainage infrastructure, community parkland, site works, vegetation removal, earthworks and associated subdivision works.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 September 2024. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the Development Application subject to conditions.

6. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the applicant amending the Development Application. These amendments included a reduced proposed number of lots from 47 to 34, further groundwater and flooding modelling, stormwater treatment to accommodate flooding, construction of a roundabout at the new intersection with Gan Gan Road to the development, provision of a visual impact assessment, and provision of 12.5m radius cul de sacs.

7. The development as amended includes: the subdivision of the existing lots into 34 residential lots and 5 residual allotments, provision of internal access roads, ancillary earthworks, stormwater management infrastructure including infiltration basins; and a bioretention basin at 263 - 321 Gan Gan Road, Anna Bay.

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

Jurisdiction

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice I make the following findings in relation to jurisdiction.

10. The Applicant is the landowner of the Site being 263, 273, 293 and 321 Gan Gan Road, Anna Bay. I am satisfied that owner’s consent was given for the lodgement of the Development Application on 12 October 2023.

11. As part of the amendments made to the development, 269 Gan Gan Road has also been included in the Development Application to accommodate demolition of existing dwelling and provision of the proposed roundabout. I am satisfied that owner’s consent has been given for 269 Gan Gan Road.

12. The Development Application proposes works on the unformed road known as Clark Road (classified as a Crown Road). On 27 August 2024, owner’s consent was given from Crown Lands for Clark Road, I am satisfied that owner’s consent has been given for Clark Road.

13. I accept the parties’ advice that the Port Stephens Local Environmental Plan 2013 (PSLEP) applies to the site. Subdivision is permissible with consent under cl 2.6.

14. The site is zoned as partially C3 Environmental Management, R2 Low Density Residential Zone and RU2 Rural Landscape under the PSLEP.

15. Clause 2.3(2) of the PSLEP specifies the consent authority must have regard to the objectives for development in a zone when determining a Development Application in respect of land within the zone. The site is located within the zones in which development for the purpose of subdivision is permitted with consent.

Integrated Development

16. The proposal was nominated on the Development Application form as integrated development under s 4.46 of the EPA Act as it requires the following authorisation under section 100B of the Rural Fires Act 1997 (RF Act) and s 90 of the National Parks and Wildlife Act 1974 (NP & W Act).

Rural Fires Act 1997

17. Pursuant to section 100B(3) of the RF Act requires that a Bushfire Safety Authority must be obtained from the Rural Fire Service for development involving the subdivision of land that could be used for residential purposes. NSW Rural Fire Service issued a Bushfire Safety Authority pursuant to s 100B of the RF Act and General Terms of Approval (GTAs) on 9 January 2024.

18. The Applicant has prepared Amended Bushfire Hazard Assessment Report prepared by Black Ash Bushfire Consulting in relation to the Amended Application. This Report certifies that the proposed development confirms with the performance criteria with the Planning for Bushfire Protection 2019 (PBP). In accordance with s 4.47 of the EPA Act, the agreed conditions of consent include the requirement to comply with the recommendations in the Amended Bushfire Assessment Report. I am satisfied with the parties’ advice that the proposed development conforms with the performance criteria in the PBP.

National Parks and Wildlife Act 1974

19. The Amended Application is an integrated development for the purposes of s 4.46 of the EPA Act. From the advice given by the parties and the Aboriginal Cultural Heritage Assessment Test Excavation Report - Roundabout and Sewer prepared by McCardle Cultural Heritage, I am satisfied that an Aboriginal Heritage Impact Permit is not required to be obtained as the Aboriginal Site will not be impacted by the proposed development given the proposed works are not within the location of the Aboriginal Site. Compliance with the above assessments and assessment of Heritage NSW has been incorporated in the conditions of consent including any discovery of relics and Aboriginal Objects. I am be satisfied that the proposed development complies with s 90 of the NP & W Act.

Roads Act 1993 and Road Transport Act 2013

20. The Development Application, as amended, seeks consent for road works at the intersection of Clark Street and Gan Gan Road shown in the Amended Civil Plans prepared by Martens dated 21 October 2024.

21. The road works require approval under s 138 of the Roads Act 1993 (Roads Act). Accordingly, a condition of consent is imposed requiring separate approval under s 138 of the Roads Act for the road works. While an approval under s 138 of the Roads Act is required, the development is not an integrated development pursuant to section 4.46(3) of the EPA Act as the Council is the Roads Authority under s 138 of the Roads Act.

22. I am satisfied from the advice of the parties that consent required for intersection works pursuant to s 122 of the Road Transport Act 2013 (RT Act) has been incorporated in the conditions of consent.

23. A condition of consent has been imposed requiring approval of the proposed intersection works, being prescribed traffic control devices, by the Local Traffic Committee. The condition is imposed as operative condition to be satisfied prior to the issue of a Subdivision Works Certificate, in accordance with the finding of Preston CJ in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 [109-113].

State Environmental Planning Policy (Resilience and Hazards) 2021

24. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires a consent authority to be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the Site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. I am satisfied that the Preliminary Site Investigation report concludes that the site carries a low risk of contamination and that the site is suitable for residential development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

25. Section 2.126(7) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires consent for development for the purpose of sewage reticulation systems. The Development Application proposes a sewerage pump station and proposed pressure sewer line and connection point to the existing services along Gan Gan Road within the existing Council Road reserve.

26. The proposed development and infrastructure is located on land identified as being within the RU2 Rural Landscape zone, which is identified as a prescribed zone in s 2.125 of the Transport and Infrastructure SEPP.

27. I am satisfied that the Development Application complies with s 2.126(7) of the Transport and Infrastructure SEPP through the advice of the parties and the following reports:

• Sewage Reticulation Scheme Plan prepared by Martens & Associates Pty Ltd

• Amended Civil Plans prepared by Martens dated 21 October 2024

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Amended SEE prepared by DMPS Town Planning & Property Development Services dated October 2024.

28. Conditions of consent have been imposed requiring carrying out of development for this service, subject to receipt of the requisite approvals. I am satisfied that the Development Application complies with section 2.126(7) of the Transport and Infrastructure SEPP.

29. Section 2.138 of the Transport and Infrastructure SEPP requires consent for development for the purpose of a stormwater management systems. The Development Application proposes stormwater infrastructure to service the development. I am satisfied through advice of the parties and the following reports and plans that the Development Application complies with s 2.138 of the Transport and Infrastructure SEPP:

• Amended Civil Plans prepared by Martens dated 21 October 2024

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Amended SEE prepared by DMPS Town Planning & Property Development Services dated October 2024

30. Section 2.48(2) of the Transport and Infrastructure SEPP requires notice, consideration and consent before determining a development application for works within 5m of an exposed overhead electricity power line. I am satisfied by the advice of the parties and the following reports that the application complies with s 2.48 of the Transport and Infrastructure SEPP:

• Amended Detail Survey Plan prepared by TSS Total Surveying Solutions dated 12 September 2024

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Amended SEE prepared by DMPS Town Planning & Property Development Services dated October 2024

31. The Development Application was referred to Ausgrid. On 1 November 2023, Ausgrid made no objection subject to standard conditions relating to safe work practices in proximity to electricity assets. I am satisfied that the Development Application complies with s 2.48(2) of the Transport and Infrastructure SEPP.

State Environmental Planning Policy (Industry and Employment) 2021

32. Section 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) requires consent for an application to display signage and be satisfied the proposal is consistent with the objectives of s 3.1(1)(a) and satisfies the assessment criteria in Sch 5.

33. Through the advice of the parties and the following reports I am satisfied that the Development Application complies with s 3.6 of the Industry and Employment SEPP:

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017

34. Under s 7.7 of the Biodiversity Conservation Act 2016 (BC Act), if a proposed development is deemed “likely to significantly affect threatened species”, the application for development consent is to be accompanied by a biodiversity development assessment report (BDAR).

35. Section 7.2 of the BC Act thereafter provides a series of triggers for when a proposed development is deemed “likely to significantly affect threatened species”. In summary, these are:

1. if the proposed development is considered likely to impact threatened species or ecological communities in consideration of the matters specified under s 7.3(1)(a)-(e);

2. if the proposed development exceeds the biodiversity offsets scheme threshold; or

3. if the works proposed are to be carried out in a declared area of outstanding biodiversity value.

36. In relation to development which “exceeds the biodiversity offsets threshold”, s 7.4 of the BC Act establishes that a proposed development is considered to exceed the biodiversity offsets threshold if it is development “of a kind that the regulations declare to exceed the threshold”.

37. Clause 7.2 of the Biodiversity Conservation Regulations 2017 (BC Regulations) provides that the clearing of native vegetation is declared to exceed the biodiversity offsets threshold if the total area to be cleared is in excess of the amount nominated under the Table at cl 7.2 – which is calculated as a function of the total area of the land on which the clearing is to take place.

38. Pursuant to the cl 7.2 Table, for land that is between 1 and 40 hectares in area, clearing 0.5 hectares or more of native vegetation is considered to exceed the biodiversity offsets threshold. The Site has a total area of 5.94 hectares. The amount of vegetation which will be impacted by the proposed development is 0.38 hectares of C3 zoned land. Accordingly, pursuant to s 7.7 of the BC Act, the Application is required to be accompanied by a BDAR.

39. I accept the parties’ advice and based on the following documents and conditions of consent I am satisfied the provisions of the BC Act (s 7.13) and the BC Regulation have therefore been considered and satisfied:

• Amended Biodiversity Development Assessment Report (ABDAR) prepared by RPS dated 11 October 2024.

• Amended Vegetation Management Plan and Biodiversity Management Plan (Rev 4) prepared by RPS Group.

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

40. Section 2.3 of the Biodiversity SEPP provides the land to which this Chapter applies. The Site is not located within the local government areas provided in s 2.3(1)(a). Pursuant to s 2.3(1)(b), Ch 2 of the Biodiversity SEPP applies as the Site is zoned part R2 Low Density Residential and C3 Environmental Management.

41. Pursuant to s 2.7(1) of the Biodiversity SEPP, a permit or approval to clear vegetation is not required if it is clearing of a kind that is authorised under the Local Land Services Act 2013 (LLS Act), s 60O or Pt 5B.

42. Section 60O of the LLS Act provides that the clearing of native vegetation in a regulated rural area is authorised under other legislation as the proposed clearing of 67 trees is authorised by a development consent under Pt 4 of the EPA Act (s 60O(a)(i)).

43. Based on the parties’ advice and the following documents and conditions of consent, I am be satisfied that a permit or approval to clear vegetation is not required under s 2.7 of the Biodiversity SEPP:

• Arboriculture Impact Assessment Report prepared by Seasoned Tree Consulting dated 15 August 2023

• Supplementary Arboriculture Impact Assessment Report prepared by Seasoned Tree Consulting dated 19 September 2024

• Arboricultural Statement for Assessment of Arboricultural Impacts of the Sewer Line along Gan Gan Road prepared by Seasoned Tree Consulting dated 13 September 2024

• Amended Landscape Plans prepared by New Eden Design Landscape Architecture dated 24 October 2024

• Amended SEE prepared by DMPS Town Planning & Property Development Service dated October 2024

Chapter 3 and 4 Koala habitat protection

44. Section 4.4 and Sch 2, Ch 4 of the Biodiversity SEPP applies to the Development Application as it located within the Port Stephens Local Government Area (LGA).

45. Section 4.8(2) of the Biodiversity SEPP requires the determination of a development application to be consistent with the approved relevant koala plan of management. The Port Stephens Council Comprehensive Koala Plan of Management (CKPoM) is an approved Koala Plan of Management that applies to the land within the LGA. Taking the advice of the parties, the following reports and conditions of consent I am satisfied that the proposed development is consistent with the CKPoM and s 4.8 of the Biodiversity SEPP.

• Amended Biodiversity Development Assessment Report (ABDAR) prepared by RPS

• Amended Vegetation Management plan and Biodiversity Management Plan (Rev 4) prepared by RPS Group

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Amended SEE prepared by DMPS Town Planning & Property Development Service dated October 2024

Chapter 6 Water Catchments

46. The Site is not mapped in any of the catchments listed in s 6.1 of the Biodiversity SEPP. Accordingly, Ch 6 does not apply to the Amended Application.

Port Stephens Local Environmental Plan 2013

47. Clause 2.1 refers to the zoning of land to which PSLEP Plan applies. The land is identified on the Land Zoning Map as being part R2 Low Density Residential, part C3 Environmental Management and part RU2 Rural Landscape.

48. Clause 2.3 provides that the Court must have regard to the objectives for development of Zone R2, C3 and RU2 when determining the Development Application under cl 2.3(2) of the PSLEP. I take the parties’ advice and the Amended Statement of Environmental Effects prepared by DMPS dated October 2024 and am satisfied that the development by its form and nature is consistent with the objectives of these zones.

49. Clause 2.6(1) requires development consent for subdivision. I take the parties’ advice and the Amended Statement of Environmental Effects prepared by DMPS dated October 2024 that the proposed development seeks consent for subdivision of the Site in accordance with the Amended Subdivision Plans.

50. Clause 2.7 requires development consent for demolition of a building. I am satisfied with the parties’ advice and the Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024 that the application seeks consent for demolition of existing dwellings and number of associated machinery/farm shed structures.

51. Clause 4.1 requires development consent for subdivision of any land shown on the Lot Size Map that (cl 4.1(2)) and that the size of any lot resulting from subdivision on land is not to be less than the minimum size shown on the Lot Size Map (cl 4.1(3)). The Lot Size Map identifies that land which is zoned R2 requires a minimum lot size of 500m². The Development Application seeks consent for proposed lots 1 – 34 with a lot size between 501m² to 571m². The Lot Size Map identifies that land which is zoned C3 requires a minimum lot size of 20 hectares. As a result of the proposed subdivision of 321 Gan Gan Road (Lot 1 DP 503876), the proposal relies on the operation of cl 4.1D regarding minimum lot sizes for certain split zones.

52. The Lot Size Map identifies that land which is zoned RU2 requires a minimum lot size of 20 hectares, and a minimum lot size of 4ha of the RU2 portion of land identified within existing 321 Gan Gan Road (Lot 1 DP 503876). I am satisfied with the parties’ advice and the following reports and conditions of consent that the Development Application complies with cl 4.1 of the PSLEP.

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Amended Subdivision Plans prepared by TSS Total Surveying Services dated 11 December 2024

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

53. Clause 4.1D requires development consent for each lot that contains land on one of the zones listed in both cl 4.1D(2)(a) and (b) provided the matters in cl 4.1D(3) are met.

54. I am satisfied with the parties’ advice including the following documents and conditions of consent that demonstrating that the proposed subdivision is compliant with cl 4.1D:

• Architectural plans DA120 and DA 131 in the Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024 which identifies the proposed lot sizes.

• Amended Subdivision Plans prepared by TSS Total Surveying Services dated 11 December 2024; and

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024.

55. Clause 5.10 refers to sites which are described in Sch 5 of the PSLEP or identified as a ‘heritage conservation area’ on the ‘Heritage Map’. The Site does not contain a heritage item, is not adjoined to an item of heritage significance, is not listed in Sch 5 and is not located within a heritage conservation area on the Heritage Map. Despite this, cl 5.10(2) applies as the Site is in an area which is known to comprise Aboriginal places of heritage significance.

56. I am satisfied with the parties’ advice and the following reports and conditions of consent that the Development Application complies with cl 5.10 of the PSLEP:

• Amended Aboriginal Cultural Heritage Assessment Test Excavation Report prepared by McCardle Cultural Heritage dated 13 September 2024

• Further Amended Aboriginal Cultural Heritage Assessment Test Excavation Report prepared by McCardle Cultural Heritage dated 30 October 2024

• Aboriginal Cultural Heritage Assessment Test Excavation Report prepared by McCardle Cultural Heritage dated 20 January 2025

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

57. I am satisfied with the parties’ advice and the following report and conditions of consent that the Development Application complies with cl 5.12 of the PSLEP. The Development Application seeks consent for works on the unformed road known as Clark Road which is a Crown Road. On 27 August 2024, Owner’s consent was given from Crown Lands for the lodging of the DA pursuant to s 23(1)(a) of the EPA Regulation.

58. Clause 5.16 of PSLEP requires that I take into account the matters specified in subclause (4) in determining whether to grant development consent to development on land to which proposes subdivision of land for the purposes of a dwelling. I take the parties advice, including the following reports and conditions of consent and I am satisfied the Development Application complies with cl 5.16 of the PSLEP:

• Respondent’s Assessment Report dated 12 October 2023

• Amended Statement of Environmental Effects dated October 2024

59. I take the parties advice, including the following reports and conditions of consent that the matters specified in cl 5.21 have been satisfied:

• Amended Detailed Survey Plan prepared by TSS Total Surveying dated 11 December 2024

• Amended Civil Plans (Rev G) prepared by Martens & Associates Pty Ltd dated 21 October 2024

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Sewage Reticulation Scheme Plan prepared by Martens & Associates Pty Ltd

• Water and Sewer Servicing Report prepared by Martens

• Waste Management Plan prepared by MRA Consulting group dated 17 August 2023

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

• The Flooding Technical Engineering Memorandum prepared by Martens & Associates Pty Ltd dated 25 October 2024

60. Clause 5.22 requires development consent for development on land to which this clause applies unless the consent authority has considered the matters listed in cl 5.22(3)(a) to (c). I take the parties’ advice, including the following reports and conditions of consent that the matters specified in cl 5.22 have been satisfied:

• Amended Detailed Survey Plan prepared by TSS Total Surveying dated 11 December 2024

• Amended Civil Plans (Rev G) prepared by Martens & Associates Pty Ltd dated 21 October 2024

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Sewage Reticulation Scheme Plan prepared by Martens & Associates Pty Ltd

• Water and Sewer Servicing Report prepared by Martens

• Waste Management Plan prepared by MRA Consulting group dated 17 August 2023

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

• Flooding Technical Engineering Memorandum prepared by Martens & Associates Pty Ltd dated 25 October 2024

• Flood Assessment prepared by Martens & Associates Pty Ltd dated 9 September 2023

61. Clause 6.2 requires development consent for development on land in an urban release area only when I am satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. Based on the parties’ advice, the following reports and conditions of consent, I am satisfied the Development Application complies with cl 6.2 of the PSLEP:

• Amended Detailed Survey Plan prepared by TSS Total Surveying dated 11 December 2024

• Amended Civil Plans (Rev G) prepared by Martens & Associates Pty Ltd dated 21 October 2024

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Sewage Reticulation Scheme Plan prepared by Martens & Associates Pty Ltd

• Water and Sewer Servicing Report prepared by Martens

• Waste Management Plan prepared by MRA Consulting group dated 17 August 2023

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

• Flooding Technical Engineering Memorandum prepared by Martens & Associates Pty Ltd dated 25 October 2024

• Flood Assessment prepared by Martens & Associates Pty Ltd dated 9 September 2023

62. Clause 6.3(2) requires development consent for development on land in an urban release area. Part of the Site is mapped as being zoned urban release area, being land which is part of Lot 901 DP 634550, Lot 902 DP 634550 and Lot 1 DP 503876. Clause 6.3(4)(b) provides that cl 6.3(2) does not apply to the proposed development if a subdivision of land if any of the lots proposed to be created is to be reserved or dedicated for public open space, public roads or any other public or environment protection purpose. The Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024 includes public open space in Lots 35, 37 and 38, and public road in Lot 36 that is to be dedicated to Council. This is further confirmed by the Amended Letter of Offer included in the s34 Agreement. I take the advice of the parties that cl 6.3(2) does not apply to the Amended Application.

63. Clause 6.5 requires development consent for the subdivision of land in an urban release area unless arrangements have been made, to the satisfaction of Transport for NSW and the consent authority for the provision of vehicular access from the urban release area to the Pacific Highway. Part of the Site is zoned urban release area, being land which is part of Lot 901 DP 634550, Lot 902 DP 634550 and Lot 1 DP 503876. I take the parties’ advice that as Gan Gan Road does not directly connect to Pacific Highway, cl 6.5(2) of the PSLEP does not apply to the Site.

64. Clause 7.1 provides that development consent is required for the carrying out of works described in the Table at cl 7.1(2) on land shown on the Acid Sulfate Soils Map. The Site is identified as being a ‘Class 3’, ‘Class 4’ and ‘Class 5’ on the Acid Sulfate Soils Map. The proposed development proposes construction of a roundabout at the new intersection with Gan Gan Road to the development, construction of access roads and detention basins. Based on the parties’ advice, the following reports and conditions of consent, I am satisfied the Development Application complies with cl 7.1 of the PSLEP:

• Amended Civil Plans prepared by Marten & Associates Pty Ltd dated 18 October 2024

• Amended Civil Plans prepared by Marten & Associates Pty Ltd dated 21 October 2024

• Geotechnical, Groundwater and Acid Sulfate Soil Report prepared by Martens & Associates Pty Ltd dated 6 September 2023

• Acid Sulfate Soils Management Plan (ASSMP) prepared by Martens & Associates Pty Ltd dated November 2024

65. Clause 7.2 requires consent for earthworks, and the consideration of matters listed in cl 7.2(3)(a) to (g). The Development Application proposes excavation in the form of cut works will be required to facilitate connection of services and proposed drainage infrastructure including infiltration basins. Based on the parties’ advice, the following reports and conditions of consent, I am satisfied the Development Application complies with cl 7.2:

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024

• Geotechnical, Groundwater and Acid Sulfate Soil Report (ASS Report) prepared by Martens

• Waste Management Plan prepared by MRA Consulting group dated 17 August 2023

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

66. Clause 7.6 requires development consent for development unless the consent authority is satisfied of the matters listed in cl 7.6(1)(a) to (e). Based on the parties’ advice, the following reports and conditions of consent I am satisfied the Development Application complies with cl 7.6 of the PSLEP:

• Amended Survey Plan prepared by TSS Total Surveying dated 11 December 2024

• Amended Civil Plans (Rev G) prepared by Martens & Associates Pty Ltd dated 21 October 2024

• Amended Architectural Plans prepared by prepared by BKA Architecture dated 25 October 2024

• Sewage Reticulation Scheme Plan prepared by Martens & Associates Pty Ltd

• Water and Sewer Servicing Report prepared by Martens

• Waste Management Plan prepared by MRA Consulting group dated 17 August 2023

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

67. Clause 7.9(3) requires the consent authority to consider the matters listed in cl 7.9(3)(a) and (b). Pursuant to cl 7.9(4) the consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied of the matters listed in cl 7.9(4)(a) to (c). The Site contains areas mapped as ‘Wetland’ on the Wetlands Map, however the proposed residential lots are not located in the ‘Wetland’ area and this clause only applies to the rear of the Site. Based on the parties’ advice, the following reports and conditions of consent I am satisfied the Development Application complies with cl 7.9 of the PSLEP.

• Amended Civil Plans prepared by Martens

• Amended Biodiversity Development Assessment Report prepared by RPS dated 11 October 2024

• Engineering Memorandum prepared by Martens dated 25 October 2024

• Amended Statement of Environmental Effects prepared by DMPS dated October 2024

Development control plan

68. I take the parties’ advice that the Development Application can be approved having regard to the Port Stephens DCP. I take the parties’ advice that the Development Application can be approved taking into consideration the matters in s 4.15(1)(b) – (e) of the EPA Act based on the following reports, and conditions of consent:

• Amended Architectural Plans prepared by BKA Architecture dated 25 October 2024 and supporting documents including the SEE.

69. The parties have agreed on conditions of consent. I take the parties advice that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

Conclusion

70. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders I make below have this effect.

71. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

72. The Court notes that:

1. Port Stephens Shire Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA 16-2023-583-1 to rely upon the plans and documents in Condition 1 of Annexure A.

2. The Applicant filed the amended Development Application with the Court on 30 January 2025.

Orders

73. The Court orders that:

1. The appeal is upheld.

2. Development Application DA 16-2023-583-1, as amended includes the subdivision of the existing lots into 34 residential lots and 5 residual allotments, provision of internal access roads, ancillary earthworks, stormwater management infrastructure including infiltration basins; and a bioretention basin at 263 - 321 Gan Gan Road, Anna Bay is granted subject to conditions of consent marked as Annexure A.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act (1979) the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.

P Nichols

Acting Commissioner of the Court

Annexure A

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Amendments

21 March 2025 - Mistake in the case name.

Decision last updated: 21 March 2025