Bayus Projects Pty Ltd v Wollondilly Shire Council

[2022] NSWLEC 1306

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bayus Projects Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1306

Hearing dates:

Conciliation conference on 2, 3 & 17 May 2022

Date of orders:

20 June 2022

Decision date:

20 June 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [13].

Catchwords:

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

Legislation Cited:

Conveyancing Act 1919, s 88B

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

Environmental Planning and Assessment Regulation 2000, cll 55, 77

Land and Environment Court Act 1979, ss 34, 39

Rural Fires Act 1997, s 100B

Standard Instrument (Local Environmental Plans) Order 2006

State Environmental Planning Policy (Building Sustainability Index BASIX) 2004

State Environmental Planning Policy No 55 - Remediation of Land

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, ss 4.1, 4.14, 4.17,

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

Sydney Regional Environmental Plan

No 20 - Hawkesbury-Nepean River, cll 4, 5, 6

Water Management Act 2000, s 91

Wollondilly Local Environmental Plan 2011, cll 2.3, 4.1, 4.3, 4.4, 5.10, 5.11, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022)

NSW Rural Fire Service, Planning for Bushfire Protection - a guide for councils, planners, fire authorities and developers (November, 2019)

Wollondilly Development Control Plan 2016

Category:

Principal judgment

Parties:

Bayus Projects Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

Counsel:
H Robilliard (Solicitor)(Applicant)
A Hemmings (Respondent)

Solicitors:
Finn Roache Lawyers (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2022/35717

Publication restriction:

No

Judgment

1. COMMISSIONER: Bayus Projects Pty Ltd (the Applicant) has appealed the refusal by Wollondilly Shire Council (the Respondent) of its development application DA/2021/1021/1, made with owner’s consent, seeking consent for the staged development of a Torrens title subdivision and construction of single storey dwellings on each of the new Lots 1 and 2 (the Proposed Development) at 78 Taylors Road, Silverdale (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Proposed Development was notified between 17 November 2021 and 1 December 2021, in accordance with and the Respondent’s notification policy in Part 4 of the Wollondilly Development Control Plan 2016. No submissions were received in response to that notification.

4. On 2 and 3 May 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection was undertaken prior to the conciliation conference as one objector provided a submission during the site view.

6. At the conciliation conference, undertaken via Microsoft Teams, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. Under s 34(3) of the Land and Environment Court Act 1979 (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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (SREP 20):

1. the provisions of SREP 20 apply to development on the Subject Site as it is land located within the Wollondilly Local Government area;

2. pursuant to cl 4 of SREP 20, the general planning considerations set out in cl 5, and the specific planning policies and related recommended strategies set out in cl 6, which are applicable to the Proposed Development, must be taken into consideration by a consent authority determining an application for consent to carry out development on land to which SREP 20 applies;

3. the Parties have confirmed that the general planning considerations set out in cl 5 and the specific planning policies and recommended related strategies set out in cl 6 of SREP 20 have been addressed within the following documents provided by the Applicant:

1. its statement of environmental effects;

2. its updated stormwater management plans;

3. its waste management plan; and

4. as a consequence, I am satisfied that the provisions of cll 4, 5 and 6 of SREP 20 have been addressed;

2. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) (incorporating the provisions of the former and now repealed State Environmental Planning Policy No. 55 - Remediation of Land):

1. relevant matters concerning the issue of contamination and the provisions of cl 4.6(1) of the Resilience SEPP are detailed in the Applicant’s Statement of Environmental Effects; and

2. the Parties have confirmed, and I accept, that the provisions of clause 4.6 of SEPP R&H are satisfied because the Respondent has no history of contamination on the Subject Site and the proposed use of the Subject Site is a continuation of use for residential purposes;

3. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 (SEPP BASIX) and the EP&A Regulation, the Applicant has provided an amended BASIX Certificate (No. 1040076M_04) in satisfaction of the requirements of Schedule 1 of the EP&A Regulation and SEPP BASIX;

4. in relation to the provisions of State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP WPC):

1. the provisions of SEPP WPC apply to the development on the Subject Site;

2. the Applicant has proposed that the Proposed Development would be undertaken in two stages:

1. first, the Torrens title subdivision of the Subject Site into two lots; and

2. subsequently, construction of a single storey dwelling on each of the newly created lots;

3. relevantly in this appeal:

1. subdivision of land is expressly permissible on the Subject Site under s 4.14 of SEPP WPC; and

2. the Parties’ agreed conditions of consent require that subdivision of the Subject Site is to be completed prior to the commencement of any construction of the Applicant’s proposed dwellings;

4. under the provisions of s 4.17(2) of SEPP WPC, development consent must not be granted to noise sensitive development if the development is to be located on land that is located within in an Australian Noise Exposure Forecast (ANEF) or Australian Noise Exposure Concept (ANEC) contour of 20 or greater, and:

1. the Subject Site is classified as land within an ANEC contour of 20 or greater;

2. subdivision of land is not defined as a “noise sensitive development” under s 4.17(5) of SEPP WPC;

3. development for the purposes of a “dwelling houses” falls within the definition of “residential accommodation” (as defined in the Standard Instrument (Local Environmental Plans) Order 2006 pursuant to s 4.1(2) of the SEPP WPC) and, consequently falls within the definition of “noise sensitive development” under s 4.17(5) of SEPP WPC; (Emphasis added).

4. however, s 4.17(4) of SEPP WPC provides the following exceptions to the prohibition in relation to development, under s 4.17(2) of SEPP WPC, for the purposes of “dwelling houses”, as follows:

(4) Despite subsection (2), development consent may be granted to development for the purposes of dwelling houses on land that is in an ANEF or ANEC contour of 20 or greater if -

(a) immediately before the commencement of this Chapter -

(i) there were no dwellings on the land, and

(ii) development for the purposes of dwelling houses was permitted on the land, and

(b) the consent authority is satisfied that the development will meet the indoor design sound levels.

5. the Parties have confirmed, and I am satisfied, that the exception provided within s 4.17(4) in relation to the developments for the purpose of constructing dwelling houses applies to the Proposed Development, because:

1. before the commencement of Chapter 4 of SEPP WPC there were no dwellings on the Subject Site;

2. the Subject Site is zoned R2 Low Density Residential under the provisions of Wollondilly Local Environmental Plan 2011 (WLEP) and “dwelling houses” were and remain a permissible type of development in that R2 zone; and

3. the Applicant’s Development Application is accompanied by an acoustic report that confirms that the Proposed Development will meet the indoor design sound levels;

4. because the Proposed Development is consistent with the provisions of s 4.17(2) of SEPP WPC, the Proposed Development is subject to the exception provisions of that clause and the Proposed Development is not prohibited on the Subject Site;

5. in relation to the provisions of WLEP:

1. clause 2.3 concerns the land use zoning of the Subject Site, which is located within the R2 Low Density Residential Zone pursuant to the WLEP, and I am satisfied that regard has been had to the objectives of the zone in relation to the Applicant’s Proposed Development, as amended, which is consistent with those objectives;

2. clause 4.1 concerns minimum subdivision lot size requirements and in relation to the Proposed Development the minimum lot size resulting from a subdivision on the applicable Lot Size map is 700m², and:

1. size of the Proposed Lot 1 within the proposed Development is 915.5m² (excluding the access handle) and

2. size of the Proposed Lot 2 within the Proposed Development is 1,436.3m²; and

3. I am satisfied that the Proposed Development is consistent with the provisions of cl 4.1;

3. clause 4.3 concerns the maximum height of buildings that can be constructed on land subject to WLEP, and:

1. the maximum height of buildings shown on the applicable map within the WLEP is 9m;

2. the maximum height of the Applicant’s proposed dwellings is 5.5m; and

3. I am satisfied that the Proposed Development complies with the maximum height of buildings development standard applicable to development on the Subject Site as set out in clause 4.3;

4. clause 4.4 concerns the maximum floor space ratio (FSR) development standard applicable to development on the Subject Site and under cl 4.4 there is no FSR standard applicable to development on the Subject Site;

5. clause 5.10 concerns heritage conservation, and under its provisions a consent authority, or the Court on appeal, is required to take into account certain matters with respect to heritage conservation, and:

1. the Subject Site does not contain a heritage item, is not within a heritage conservation area, does not contain a known Aboriginal object and is not within an Aboriginal place of heritage significance;

2. the Subject Site is not mapped on the relevant Heritage Map; and

3. I am satisfied that the requirements of cl 5.10 have been taken into account for the purposes of the Proposed Development;

6. clause 5.11 concerns bush fire hazard reduction, and that clause states that bush fire hazard reduction work authorised by the Rural Fires Act 1997 (Rural Fires Act) may be carried out on any land without development consent;

7. clause 7.1 concerns the provision essential services in relation to the proposed Development, and:

1. development consent must not be granted unless the consent authority is satisfied that the services identified in cl 7.1 are available or that adequate arrangements have been made to make them available when required by the Proposed Development; and

2. the Parties have confirmed, and I am satisfied, that the services required under the provision of cl 7.1 will be available for the Proposed Development at the required time, including in relation to telecommunications concerning which the Parties agreed conditions include a requirement that a so-called “section 73 certificate” connection is obtained prior to the release of the subdivision certificate for the Proposed Development;

8. clause 7.2 concerns biodiversity protection, and the Parties agree, and I am satisfied, that the clause has no application to the Proposed Development as the Subject Site is not identified as being “sensitive land” on the Natural Resources - Biodiversity Map within WLEP;

9. clause 7.3 concerns water protection and its provisions apply to the proposed Development as the Subject Site is identified as “sensitive land” on the Natural Resources – Water Map within WLEP, and:

1. pursuant to the provisions of subcl 7.3(3), before determining a development application for land to which the clause applies, the consent authority must consider any adverse impact of the proposed development in relation to matters identified in that subclause;

2. pursuant to the provisions of subcl 7.3(4), development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the further matters identified in that subclause have been addressed;

3. the Parties advise that water protection matters have been considered within the documents filed with the Court, including the Applicant’s Architectural Plans (Issue F), its Subdivision Plan, and its statement of environmental effects;

4. the Natural Resources Asset Regulator (NRAR) has advised that pursuant to the provisions of s 91 of the Water Management Act 2000 (WM Act), the Proposed Development does not require concurrence of the NRAR because, despite the Subject Site being identified as sensitive land on the Natural Resources – Water Map within WLEP and including a 10m riparian buffer zone, the Applicant’s proposed dwellings will be located within the building envelope which is not located within the riparian buffer zone, and while the proposed concrete access handle is located within the riparian buffer zone, it is not located within the vicinity of the riparian creek area;

5. consistent with the provisions of cl 7.3, the Proposed Development would not have an impact upon that portion of the Subject Site identified as sensitive land on the Natural Resources – Water Map within WLEP; and

6. consistent with the advice of the parties, and as required under the provisions of subcl 7.3(4) of WLEP, I am satisfied the development is designed, sited and will be managed to avoid any adverse environmental impact, or if any impacts cannot be avoided then the development is designed, sited and will be managed to minimise that impact, or if any impacts cannot be minimised, then the development will be managed to mitigate that impact; and

7. the Parties have drawn the Court’s attention to the fact that an instrument made pursuant to s 88B of the Conveyancing Act 1919 apples to the Subject Site wand this also provides for the protection of the riparian buffer zone on the Subject Site;

10. clause 7.4, which concerns flood planning, has been repealed and:

1. the Parties have confirmed that the Subject Site is not identified as being flood affected; but

2. due to the proximity of a watercourse on the Subject Site the Applicant submitted a flood report with the original subdivision of the land; and

3. the Parties have confirmed, and I am satisfied, that no further flood assessment of the Proposed Development is required and flood planning matters, including in relation to the public interest, have otherwise been adequately addressed in the Parties’ agreed conditions of consent in the appeal;

11. clause 7.5 concerns earthworks and the Proposed Development, as amended, requires the carrying out of earthworks, and:

1. under the provisions of subcl 7.5(3) before granting development consent for earthworks, the consent authority must consider the matters identified in that subclause;

2. the Parties have confirmed, and I am satisfied, that the relevant matters requiring consideration under subcl 7.5(3) have been considered by the Parties in reaching their agreement, relying on information contained in the Applicant’s statement of environmental effects;

12. clause 7.6 concerns development within a designated buffer area, and the Subject Site is not located within a designated buffer area for the purposes of cl 7.6;

13. clause 7.7 concerns development near coal seam gas wells at Menangle and the Subject Site is not located on land within a 200m radius of a coal seam gas well as identified on the relevant map for the purposes of cl 7.7;

14. clause 7.8 concerns concurrences required from the Planning Secretary, and the Subject Site is not identified as land to which clause 7.8 applies;

15. clause 7.9 concerns development within metropolitan rural areas and the clause applies to the Proposed Development as the Subject Site is land identified as “Metropolitan Rural Area” on the Metropolitan Rural Area Map in WLEP, and:

1. under the provisions of subcl 7.9(3) development consent must not be granted to development on land to which this subclause applies unless the consent authority has considered the matters identified in the subclause; and

2. the Parties have confirmed, and I am satisfied, that the matters concerning development within metropolitan rural area identified within subcl 7.9(3) have been considered within the Applicant’s statement of environmental effects such that they have been adequately considered for the purposes of cl 7.9;

6. in relation to further provisions of the EP&A Act, pursuant to s 4.46 the Proposed Development constitutes integrated development and requires approval from relevant authorities in relation to:

1. section 100B of the Rural Fires Act in relation to which the NSW RFS is the relevant authority; and

2. section 91 of the WM Act in relation to which the NRAR is the relevant authority;

7. in relation to the provisions of s 100B of the Rural Fires Act:

1. the provisions of that clause are relevant to the carrying out of development on bush fire prone land, and the Subject Site is identified as bushfire prone land;

2. section 100B(3) requires that a person must obtain such a bushfire safety authority before developing bushfire prone land for a purpose referred to in s 100B(1);

3. the Proposed Development requires a bush fire safety authority pursuant to s 100B(1) as it is development for the purposes of a subdivision of bushfire prone land that could lawfully be used for residential or rural residential purposes (in accordance with s 100B(1)(a));

4. bushfire safety authorities are issued by the Commissioner of the NSW RFS;

5. in November 2021, the Respondent referred the Development Application to the NSW RFS but no response was received from the NSW RFS before the Respondent refused the Applicant’s Development Application on 13 December 2021;

6. the Respondent again requested a bushfire safety authority, in the form of general terms of approval, from NSW RFS on 1 May 2022 and had not received the bushfire safety authority/general terms of approval at the time that this appeal was determined;

7. notwithstanding this, the Applicant’s Development Application has been accompanied by a Bushfire Hazard Assessment Report prepared by Bushfire Consulting Services Pty Ltd dated 2 December 2020;

8. section 39(6) of the LEC Act provides as follows:

“Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted,

….”

9. consequently:

1. because the provisions of the Rural Fires Act are engaged on the basis of s 4.46 of the EP&A Act with respect to integrated development and approvals required under s 100B of the Rural Fires Act in order to grant development consent; and

2. because s 4.47 of the EP&A Act requires that the consent authority or the Court on appeal, obtain general terms of approval from the relevant approval body, in this case the NSW RFS;

3. the provisions of cl 39(6) of the LEC Act can be applied in relation to the current appeal and specifically the provisions of s 100B of the Rural Fires Act and the related approval required from the NSW RFS;

10. as a further consequence, relying on the powers provided within s 39(6) of the Court Act, I am satisfied that:

1. I can determine this appeal in the absence of a response from the NSW RFS; and

2. on the basis of the Applicant’s Bushfire Hazard Assessment Report, and the Parties’ agreed conditions of consent, including those in condition 2 requiring compliance with “Planning or Bushfire Protection 2019”, the appeal can be determined by the grant of consent to the Proposed Development in the absence of approval from the NSW RFS in relation to the provisions of s 100B of the Rural Fires Act;

8. in relation to the provisions of s 91 of the WM Act, the Proposed Development requires approval pursuant to s 91 as it requires a controlled activity approval due to there being a riparian corridor on the Subject Site, and:

1. the NRAR is an approval body pursuant to s 4.46 of the EP&A Act and in November 2021, the Respondent referred the Development Application to NRAR and no response was received from NRAR before the Respondent refused the Development Application on 13 December 2021;

2. on 1 May 2022, the Respondent referred the Development Application as now amended to the NRAR, and it received confirmation from NRAR on 16 May 2022 that the Proposed Development was considered to be exempt and did not require general terms of approval to be issued by the NRAR.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

10. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

Orders

13. The orders of the Court are:

1. the Court, exercising under s 39(2) of the Land and Environment Act 1979 the function of the Wollondilly Shire Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA/2021/1021/1 in accordance with the following amended plans and documents, and grants leave to the Applicant to rely on these plans in the proceedings:

1. Architectural Plans prepared by AJ Design and Draft, Issue F dated 26 April 2022:

1. Drawing No. 01 – Site Plan/Analysis;

2. Drawing No. 02 – Floor Plan;

3. Drawing No. 03 – Elevations and Section A-A; and

4. Drawing No. 04 – Draft Subdivision Plan.

2. Revised Stormwater Management Plans prepared by Amity Engineers dated 2 May 2022;

3. Amended BASIX Certificate No. 1040076M_04 prepared by Greenworld Architectural Drafting dated 2 May 2022;

2. the appeal is upheld;

3. the Applicant’s development application DA/2021/1021/1 for staged development of a Torrens title subdivision into two lots and construction of a single storey dwelling on each of the new lots in respect of the property at 78 Taylors Road, Silverdale, comprising Lot 4 in DP1247750, is determined by the grant of consent, subject to the conditions of consent at Annexure ‘A’.

………………………..

M Chilcott

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 20 June 2022