Australian Native Landscapes Pty Ltd v Mid-Coast Council

[2024] NSWLEC 1769

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australian Native Landscapes Pty Ltd v Mid-Coast Council [2024] NSWLEC 1769

Hearing dates:

Conciliation Conference 20 November 2024

Date of orders:

28 November 2024

Decision date:

28 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent DA-9/2021 for the construction of three industrial sheds and alterations to an existing workshop at Lot 1 in Deposited Plan 714149, 12 Pindimar Road, Tea Gardens, is modified in the terms in Annexure A.

(3) Development consent DA-9/2021 for the construction of three industrial sheds and alterations to existing workshop at Lot 1 in Deposited Plan 714149, 12 Pindimar Road, Tea Gardens, as modified by the Court is Annexure B.

Catchwords:

APPEAL – Modification Application – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Land and Environment Court Act 1979, ss 4.15, 17, 34

Great Lakes Local Environmental Plan 2014, cll 4.3, 4.4, 7.2, 7.5

State Environmental Planning Policy (Resilience and Hazards) 2021

Texts Cited:

Great Lakes Community Engagement Strategy (2022-2025)

Great Lakes Development Control Plan 2014

MidCoast Council Ordinary Meeting Minutes, 27 April 2022

Category:

Principal judgment

Parties:

Australian Native Landscapes Pty Ltd (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
A Chryssochoides (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Local Government Legal (Respondent)

File Number(s):

2024/321649

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the imposition of Condition 4.1 by the respondent in granting consent to the applicant’s modification application 2023/0270 (Modification Application) seeking to modify DA-9/2021 (Original Consent). The Original Consent was granted by the respondent on 27 April 2022 and approved the construction of two sheds for the purposes of baling and packaging, additions to an existing workshop, construction of a shed for the processing of wood and timber waste (Timber Shed), and changes to water sensitive design measures on Lot 1 in Deposited Plan 714149, known as 12 Pindimar Road, Tea Gardens (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Modification Application

3. The Modification Application as lodged with the respondent on 15 November 2023 pursuant to s 4.55(2) of the EPA Act, sought to amend the Original Consent by seeking changes to the built form of the development approved under the Original Consent, specifically changes to the Timber Shed, including:

1. roof area over the approved biofilter;

2. new air-con control room;

3. new amenities;

4. north-westerly extension of the approved building footprint (approximately 7 metres);

5. new product receival zone; and

6. new roller door on the south-eastern elevation.

4. The Modification Application was notified between 5 February 2024 and 26 February 2024.

5. On 21 August 2024, the Modification Application was approved by the respondent subject to conditions, including the imposition of new Condition 4.1 which relevantly provided:

“4.1 Composting prohibited

This consent does not approve composing on the site.

Reason: To ensure the approved development is carried out in the manner in which it was assessed.”

6. On 30 August 2024, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the imposition of Condition 4.1. The proceedings were commenced within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 20 November 2024. I presided over the conciliation conference.

8. During the conciliation conference, the parties reached agreement as to the resolution of the proceedings. The decision agreed upon is for the grant of consent to the Modification Application, subject to conditions of consent and in particular, the deletion of Condition 4.1. The signed agreement is supported by an agreed jurisdictional statement.

9. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Jurisdictional considerations

10. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The applicant is the registered proprietor of the Subject Land and provided consent to the Modification Application when it was lodged with the respondent.

2. For the purposes of s 4.55(2)(a) of the EPA Act, the development to which the Original Consent as modified relates is substantially the same development as the development for which the Original Consent was granted. I have formed this view for the following reasons as generally identified in the Statement of Environmental Effects prepared by Tomasy Planning dated 17 October 2023 (SEE):

1. The modifications do not significantly alter the built form of the Original Development which remains similar in height, scale and appearance.

2. The works do not propose substantial changes to the Original Development and comprise upgrades to the existing structures and systems to improve staff amenity and operational efficiency.

3. The modifications will not result in any significant adverse impacts upon the existing built environment.

4. The public perspective of the proposal as modified remains the same and does not change the character or use of the development, which is a large rural-type building used for the processing of forestry and sawmill residues, urban wood residues and non-putrescible organics.

3. Section 4.55(2)(b) of the EPA Act does not apply to this matter.

4. In relation to s 4.55(2)(c), the respondent has confirmed that the Modification Application was notified in accordance with the requirements of the relevant Community Engagement Strategy (2022-2025).

5. In relation to s 4.55(2)(d), the submissions received as part of the notification process have been taken into consideration in reaching agreement to resolve their contentions in this matter. To this end, I note that three residents addressed the Court at the conciliation conference on 20 November 2024, raising concerns regarding the operation of the existing facility and the potential future processing of putrescible waste. I am satisfied that the submissions have been considered, and confirm that the Modification Application does not propose an intensification of existing approved operations and does not seek consent to process putrescible waste.

6. In respect of s 4.55(3), in determining the Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Modification Application. Further, I am satisfied that the reasons given by the consent authority for the grant of the Original Consent have been considered, having regard to the Minutes of the Ordinary Meeting of Mid-Coast Council held 27 April 2022 (Meeting Minutes) which relevantly concluded that the Original Development demonstrated compliance with the provisions contained with relevant State Environmental Planning Policies and the Great Lakes Local Environmental Plan 2014 (GLEP).

7. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and are satisfied in relation to the Amended Modification Application. The parties rely on the consideration of contamination as part of the determination of the Original Consent (which is unchanged by the Modification Application) where it was stated in Meeting Minutes that:

“The site currently accommodates an industrial use as a “wood chipping mill”. The proposed development is an extension of the current “wood chipping mill” operations to include bailing and packing of horticultural products and processing of wood waste, which have similar industrial characteristics.

On this basis, assessment of contamination of the site has not been required. The application is to be conditioned to manage the site condition in the event that any contamination is uncovered during development works.”

8. The Site is zoned RU2 Rural Landscape under the GLEP. Accordingly, farm buildings and rural industry are permitted with consent in RU2 zone. In respect of relevant provisions of the GLEP, the parties submit and I accept that:

1. Although the height of the Timber Shed exceeds the height of buildings standard under cl 4.3 of the GLEP, the height proposed by the Modification Application is unchanged from that approved under the Original Consent for which a cl 4.6 variation request was provided and accepted.

2. The Modification Application complies with the floor space ratio standard in cl 4.4 of the GLEP.

3. For the purposes of cl 7.2 of the GLEP relating to earthworks, there are no additional earthworks proposed by the Modification Application. Earthworks relevant to the proposed development were considered and assessed in the grant of the Original Consent and are unchanged by the Modification Application.

4. For the purposes of cl 7.5 of the GLEP relating to stormwater management, the Original Consent approved a Water Sensitivity Design Strategy and there are no changes contemplated by the Modification Application that interfere or deviate from that strategy. Therefore, the Court can be satisfied of the matters listed in cl 7.5(2) of the GLEP.

9. Relevant provisions of the Great Lakes Development Control Plan 2014 have been considered in the SEE (pp 26-27) and raise no impediment to the grant of consent to the Modification Application.

11. 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.

Orders

12. The Court orders that:

1. The appeal is upheld.

2. Development consent DA-9/2021 for the construction of three industrial sheds and alterations to an existing workshop at Lot 1 in Deposited Plan 714149, 12 Pindimar Road, Tea Gardens, is modified in the terms in Annexure A.

3. Development consent DA-9/2021 for the construction of three industrial sheds and alterations to existing workshop at Lot 1 in Deposited Plan 714149, 12 Pindimar Road, Tea Gardens, as modified by the Court is Annexure B.

N Targett

Commissioner of the Court

321649.24 Annexure A

321649.24 Annexure B

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Decision last updated: 28 November 2024