Boyce v Wingecarribee Shire Council

[2024] NSWLEC 1556

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boyce v Wingecarribee Shire Council [2024] NSWLEC 1556

Hearing dates:

Conciliation conference on 6 September 2024

Date of orders:

11 September 2024

Decision date:

11 September 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $2,000.00.

(3)   Development Application DA24/0372, lodged on 18 October 2023, as amended, is determined by the grant of consent for the demolition of two existing single storey dwellings, construction of a 3-storey motel comprising 39 guest rooms, 1 managers/caretakers room, reception area, guest lounge and bar, 39 under croft car parking spaces (3 accessible), associated landscaping and site works and erection of two business identification signs at 13 and 15 Regent Street, Mittagong, which is legally known as Lots 24 and 25 in Deposited Plan 1289, subject to the conditions contained at Annexure A.

Catchwords:

APPEAL – development application – three-storey motel – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.5, ss 6.61, 6.63, 6.64

State Environmental Planning Policy (Industry and Employment) 2021, s 3.6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.100

Wingecarribee Local Environmental Plan 2010, cll 4.3, 4.6, 5.10, 7.3

Category:

Principal judgment

Parties:

Greg Boyce (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
B Dyer (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Maddocks (Respondent)

File Number(s):

2023/457553

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of two dwellings and the construction of a 3-storey motel comprising 39 guest rooms, a manager’s room, reception area, guest lounge and bar and undercroft car parking, at 13-15 Regent Street, Mittagong. The development application was lodged with the respondent, Wingecarribee Shire Council, on 18 October 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 6 September 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which is contained in the signed written agreement that was filed on 30 August 2024, with some minor changes made at the conciliation conference on 6 September 2024. The agreement follows the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments include changes to the bin collection area, changes to the roof form to introduce a pitched roof, reduction in the bulk and scale of the built form, changes to the design to create a better streetscape presentation, amendments to address internal circulation, privacy and overlooking, and an update to the Plan of Management to provide further detail.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement on Jurisdictional Prerequisites that sets out the prerequisites to the exercise of the power to grant consent to the development application the subject of the appeal. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 2 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of motel accommodation, which is permissible with consent in the E1 Local Centre zone in which the site is located, pursuant to the Wingecarribee Local Environmental Plan 2010 (WLEP).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 10m, pursuant to cl 4.3 of the WLEP. The proposed maximum height of 10.342m represents a contravention of 0.342m above the numerical standard. The contravention is confined to the topmost portion of two of the roof ridges. I am satisfied that the written request, dated 6 September 2024 and lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach arises from the topography of the site and allows there to be a ridge roof form broken into three separate roof forms. The proposed roof form is a deliberate design to achieve consistency with other built form in the area. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The proposed development complies with the applicable development standard in the WLEP concerning floor space ratio.

• The development is located in the vicinity of two local heritage items and the effect of the development on the heritage significance of the heritage items has been considered, as required by cl 5.10(4) of the WLEP. Based on the Statement of Environmental Effects dated September 2023, I accept that the proposed development does not unacceptably impact the heritage significance of the heritage items.

• The development application includes minor earthworks. Based on the construction management plan by Cracknell and Lonergan and the Statement of Environmental Effects dated September 2023, I have considered the matters set out in cl 7.3(3) of the WLEP.

• The site falls within the Sydney drinking water catchment, such that Pt 6.5 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the development application. Consistent with the requirements of s 6.64, the concurrence of Water NSW has been obtained. Based on the Stormwater Design Plans prepared by JCO Consultants Pty Ltd dated 1 September 2023, the Statement of Environmental Effects prepared by DFP Planning Consultants dated September 2023, the concurrence of Water NSW dated 18 December 2023 and the conditions of the concurrence, I am satisfied of the matters in ss 6.61(1) and 6.63 of the SEPP BC.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The proposed development is adjacent to a rail corridor, and s 2.98 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) therefore applies. Section 2.100 of the SEPP TI also applies if the manager’s room can be considered residential accommodation. The rail authority, Australian Rail Track Corporation, was notified pursuant to s 2.98(2), and granted their concurrence, subject to conditions which are included in the conditions of development consent. Sections 2.98 and 2.100 of the SEPP TI require that, before determining a development application for development on land adjacent to a rail corridor, “the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette”. The Acoustic Report prepared by PKA Acoustics and dated 1 September 2024 considers those guidelines. Based on the acoustic report and the agreed conditions of consent which require the recommendations of the acoustic report to be carried out, I am satisfied that appropriate measures will be taken to ensure that the LAeq levels in s 2.100(3) are not exceeded.

• The development application includes two business identification signs, one on the Regent Street façade and the second on the north-eastern façade to display towards the northern end of Albion Lane. Section 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 therefore applies. Based on the Statement of Environmental Effects prepared by DFP Planning Consultants and dated September 2023, I am satisfied of the matters in s 3.6.

• The development application was publicly notified between 11 December 2023 and 1 February 2024. One submission was received. I have considered the issues raised in that submission, which concern carparking and signage.

6. 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)).

7. 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.

8. The Court notes that the Applicant has amended development application DA24/0372 with the agreement of Wingecarribee Shire Council, as the relevant consent authority, pursuant to subss 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 by relying upon the following amended documents:

Drawing No & Revision		Title	Prepared by	Date
Architectural Plans
1.	101C	Ground Floor	Cracknell & Lonergan Architects Pty Ltd	25/07/2024
	102C	First Floor		25/07/2024
	103D	Second Floor		02/08/2024
	104B	Roof Plan		18/06/2024
	201C	South Western & North Eastern Elevations		25/07/2024
	202C	North Western & South Eastern Elevations		25/07/2024
	301D	Sections		02/08/2024
	501B	Materials and Finishes		18/06/2024
	601B	Construction management plan		18/06/2024
Reports / Documents
2	Waste Management Plan		Greg Boyce	22/04/2024
3	Plan of Management (Issue C)		Greg Boyce	17/06/2024
4	Quantity Surveyor Letter		Washington Brown Quantity Surveyors	18/06/2024
5	Swept path diagram		McLaren Traffic Engineering	19/06/2024
6	Operational Guidance Letter		Ananas Consulting	30/05/2024
7	Clause 4.6 written request to vary development standard – height development standard		DFP Planning Consultants	6/09/2024

9. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $2,000.00.

3. Development Application DA24/0372, lodged on 18 October 2023, as amended, is determined by the grant of consent for the demolition of two existing single storey dwellings, construction of a 3-storey motel comprising 39 guest rooms, 1 managers/caretakers room, reception area, guest lounge and bar, 39 under croft car parking spaces (3 accessible), associated landscaping and site works and erection of two business identification signs at 13 and 15 Regent Street, Mittagong, which is legally known as Lots 24 and 25 in Deposited Plan 1289, subject to the conditions contained at Annexure A.

J Gray

Commissioner of the Court

457553.23 Annexure A

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Decision last updated: 11 September 2024