Burleigh One Pty Ltd v Tweed Shire Council

Case •

[2024] NSWLEC 1745

•

20 November 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Burleigh One Pty Ltd v Tweed Shire Council [2024] NSWLEC 1745
Hearing dates: Conciliation conference on 31 October 2024
Date of orders: 20 November 2024
Decision date: 20 November 2024
Jurisdiction:Class 1
Before: Dixon SC
Decision:

The Court orders:

(1) The applicant's written request under cl 4.6 of the Tweed Local Environmental Plan 2014 seeking a contravention of the maximum height standard under cl 4.3 is upheld.

(2) The appeal is upheld.

(3) Development application No. DA23/0632 for the construction of a 4-storey mixed use building comprising ground floor office and car parking and shop top housing comprising 12 dwellings at 100-102 Hastings Road, Bogangar, also legally known as Lots 181 and 182 of DP 259164, is determined by the grant of consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

APPEAL – development application – mixed use development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Coastal Management Act 2016, s 17

Environmental Planning and Assessment Act 1979, ss 4.15, 8.15(3)

Land and Environment Court Act 1979, s 34

National Parks and Wildlife Act 1974

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 29, 38

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 145, 147; Sch 9

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 2.12, 2.13; Ch 4, s 4.6

State Environmental Planning Policy (Sustainable Building) 2022, Ch 2, s 2.1; Schs 1, 2

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.48

Tweed Local Environment Plan 2014, cll 4.3, 4.4, 4.6, 5.10, 5.21, 7.1, 7.2, 7.6, 7.10

Texts Cited:

Apartment Design Guide

Category:Principal judgment
Parties: Burleigh One Pty Ltd (Applicant)
Tweed Shire Council (Respondent)
Representation:

Counsel:
P Murray (Solicitor) (Applicant)
H Irish (Respondent)

Solicitors:
Addisons (Applicant)
Hall & Wilcox (Respondent)
File Number(s): 2024/39879
Publication restriction: Nil

JUDGMENT

  1. These proceedings arise following an appeal against the deemed refusal of development application No. DA23/0632 (DA) by Tweed Shire Council for the construction of a 4-storey mixed use building comprising ground floor office, car parking and shop top housing comprising 12 dwellings at 100-102 Hastings Road, Bogangar, also legally known as Lots 181 and 182 in DP 259164 (site).

  2. The matter was listed for a 3-day hearing on 31 October and 1-2 November 2024, commencing in Court in Sydney. At the outset of the hearing, the Court and the parties’ legal representatives heard from a local objector via AVL. Whilst acknowledging that the revised design had moved the development west away from his property to a distance of approximately 11.2m, and that the design of the eastern elevation had been improved with more articulation and varying materials, he remained concerned about overlooking and privacy into his apartment from newly located balconies He was also concerned about unacceptable noise emanating from the level on the roof, being used as an outdoor entertaining area for the residents.

  3. Following the objector’s submissions, the parties sought an adjournment of the hearing to allow the matter to be reallocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conciliation took place before me on 31 October 2024.

  4. At the conciliation conference the parties were able to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involved the grant of development consent, subject to the conditions in Annexure A.

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

Jurisdictional preconditions

  1. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the parties’ s34 written agreement.

  2. After a consideration of the parties’ submissions and the documentation attached to the executed s34 agreement, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following.

  3. The applicant is the landowner of the site. Landowner’s consent has also been provided by the owners of the adjoining property comprising Lot 183 in DP 259164 for the making of the DA with respect to the proposed works and use of the existing right of carriageway. The DA has been made in accordance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

  4. The DA was placed on public exhibition for 14 days between 15 January 2024 and 31 January 2024. Two submissions were received objecting to the DA raising concerns relating to visual bulk, height, the right of carriageway and overshadowing.

  5. The matters raised by the objectors in relation to the DA have been considered by the Council. The parties submit and I accept that all relevant objections have been satisfactorily addressed through the applicant’s DA, as amended, the joint expert reports and the conditions in Annexure A to the s34 agreement.

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

  1. Chapter 2 of the RH SEPP applies to the site as it is identified as land within the ‘coastal environment area’ and ‘coastal use area’ under the Coastal Use Area Map.

  2. Section 2.10 of the RH SEPP provides:

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

  1. The Statement of Environmental Effects accompanying the DA records that the site is physically and spatially removed and separated from any foreshore area or waterway by roads and built urban areas (Class 1 Application, Tab 3).

  2. The parties consider that the proposed development will not have any adverse impacts on the matters listed in s 2.10(1). In any event, the parties submit and I accept that pursuant to s 2.10(2) that the DA, as amended, has been designed and sited to avoid adverse impacts on the matters listed in s 2.10(1).

  3. Section 2.11 of the RH SEPP applies to development on land that is within the coastal use area and relevantly provides:

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

…

  1. As mentioned above, the site is physically and spatially removed and separated from any foreshore area or waterway by roads and built urban areas and therefore the proposed development will not cause adverse impacts to the existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability. Nor will the proposal result in any adverse overshadowing, wind tunnel impacts or view loss from public places to foreshores as the property abuts public roads and an existing building.

  2. Further, an Aboriginal Heritage Information Management System (AHIMS) search has been conducted for each lot of the site with a 50m buffer. It has shown that there are no recorded Aboriginal cultural heritage sites or places in or near the site (Class 1 Application, Tab 17).

  3. In any event, Condition 43 of the conditions of consent contains requirements for any suspected relic of Aboriginal object encountered to be notified to the Heritage Council and for works to cease until otherwise advised by the Heritage Council or the relevant authority under the National Parks and Wildlife Act 1974.

  4. Accordingly, the parties submit and I accept that the proposal will not result in any adverse environmental impacts having regard to the matters listed in s 2.11(1)(a) which would require management to avoid, minimise or mitigate those impacts.

  5. The Council has considered in accordance with s 2.11(1)(c) the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. It informs me that it is satisfied that the proposal will achieve a harmonious built form within its surrounding coastal and built environment.

  6. Section 2.12 of SEPP RH provides that:

Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land.

  1. For the reasons listed above, the parties submit, and I accept that the proposal will not cause increased risk of coastal hazards on the site or any other land.

  2. Section 2.13 of SEPP RH provides that:

Development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land.

  1. There is no coastal management program which currently applies to the site. Tweed Shire Council is developing a Coastal Management Program (CMP) to apply to the coastlines and coastal estuaries within the Tweed Shire however, the CMP has not yet been adopted or certified in accordance with s 17 of the Coastal Management Act 2016.

  2. Chapter 4 of the RH SEPP applies to all land and aims to provide for a State-wide planning approach to the remediation of contaminated land.

  3. Section 4.6 of the SEPP RH 2021 states:

(1) 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.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subsection (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is—

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land—

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

  1. The site currently comprises two vacant lots within a built urban environment, being the local centre zoning of Bogangar that is not, and has not been, used for any contaminating uses and does not adjoin any use that would have contaminated the site.

  2. The site seeks consent for the construction of a mixed-use building and will result in a change of use of the land, however it is not within an investigation area, nor has any development for a purpose or activity referred to in Table 1 of the Contaminated Land Planning Guidelines previously occurred on the site.

  3. Condition 10 of the conditions of consent provide for an unexpected finds a protocol to be developed to deal with the management of any potential contamination found on the site prior to, and during, building works.

  4. Accordingly, the parties submit, and I accept that the site is suitable in its current state to be redeveloped for a mixed-used purpose and that if any remediation is required due to unexpected finds during development it will be addressed through the conditions of consent.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

  1. Chapter 4 of the Housing SEPP applies to the proposed development as it is for the purposes of ‘shop-top housing’ and seeks the erection of a new building on the site, which is at least 3 storeys and contains at least 4 dwellings.

  2. Section 145 of the Housing SEPP relevantly provides that:

(1) This section applies to a development application for residential apartment development, other than State significant development.

(2) Before determining the development application, the consent authority must refer the application to the design review panel for the local government area in which the development will be carried out for advice on the quality of the design of the development.

(3) This section does not apply if—

(a) a design review panel has not been constituted for the local government area in which the development will be carried out, or

(b) a competitive design process has been held.

…

  1. A design review panel has not been constituted for the Tweed Shire Local Government Area which would apply to the DA or the site. Accordingly, s 145 is not applicable to the proposed development.

  2. Section 147 of the Housing SEPP relevantly provides:

(1) Development consent must not be granted to residential apartment development, and a development consent for residential apartment development must not be modified, unless the consent authority has considered the following—

(a) the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

(b) the Apartment Design Guide,

(c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.

…

(3) To avoid doubt, subsection (1)(b) does not require a consent authority to require compliance with design criteria specified in the Apartment Design Guide.

…

  1. The DA, as amended, is accompanied by a Design Verification Statement prepared by Walsh Architects in accordance with s 29 of the EPA Regulation (s34 agreement bundle, Tab 4), which assesses compliance for the amended proposal with the Apartment Design Guide (ADG), and the Design Quality Principles under Sch 9 of the Housing SEPP. The Council is satisfied on the evidence of the planners that the amended proposal satisfies the Design Quality Principles and meets the objectives of the ADG (JER Planning).

  2. The DA, as amended, believes that the provision of a rooftop communal open space (COS) measuring 113m2, with full sunlight exposure, provides residents with a space for recreation and social interaction. The experts also agree that the extent and location of COS provided within the proposal is appropriate and notes that the ADG refers to situations where COS might be reduced and that the site generally fits these criteria (JER Planning, p 6).

  3. The DA, as amended, also provides storage areas and locations which demonstrate that there is sufficient and compliant storage (JER Planning, p 13).

  4. Privacy screens have been added between the apartment balconies to ensure that appropriate privacy and separation is achieved (JER Planning, p 6). The Council is satisfied that these measures assist address the objectors’ concerns about overlooking.

  5. The DA, as amended, sees re-arrangements to the massing of the building and location of balconies for each dwelling. Due to the east-west orientation of the site, morning sun is provided to balconies of Units, 3, 4, 7, 8, 11 and 12. Afternoon sun is provided to the balconies of Units 1, 2, 5, 6, 9 and 10. Skylights to the living areas of Units 9, 10, 11 and 12 have also been added to improve solar access.

  6. The experts agree that proposed development maximises solar access within the site constraints, and through the provision of rooftop COS will further enhance this opportunity, achieving a reasonable level of compliance in regard to the provision of solar access and amenity (JER Planning, p 7).

  7. The parties submit and I accept that the matters under s 147(1) of the Housing SEPP have been taken into consideration and consent can be granted to the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

  1. Chapter 2 of the TI SEPP applies to the entire State, except as otherwise provided.

  2. Section 2.48 of the TI SEPP relates to the determination of development applications where development is likely to affect an electricity transmission or distribution network. It relevantly provides:

(1) This section applies to a development application (or an application for modification of a consent) for development comprising or involving any of the following—

…

(b) development carried out—

(i) within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii) immediately adjacent to an electricity substation, or

(iii) within 5m of an exposed overhead electricity power line,

…

(2) Before determining a development application (or an application for modification of a consent) for development to which this section applies, the consent authority must—

(a) give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

(b) take into consideration any response to the notice that is received within 21 days after the notice is given.

…

  1. The proposed development is within 5m of an exposed overhead electricity power line and requires the Council to provide written notice pursuant to s 2.48(2)(a).

  2. On 20 December 2023, the Council referred the DA to Essential Energy as the relevant electricity supply authority. Essential Energy provided their response and comments on 11 February 2024, but did not raise any specific concerns in relation to the DA.

  3. The Council has taken into consideration the general comments provided by Essential Energy and the parties submit and I accept that s 2.48 of the TI SEPP has been met.

State Environmental Planning Policy (Sustainable Building) 2022 (Sustainable Building SEPP)

  1. The Sustainable Building SEPP applies to the proposed development. Under s 27 of the EPA Regulation, a development application for BASIX development must be accompanied by a relevant BASIX certificate and other matters required by the BASIX certificate.

  2. The proposed development is for shop-top housing and contains at least one dwelling, making it a BASIX-building for the purposes of the definition under the EPA Regulation. Consequently, the proposed development meets the definition referred to in par (a) of a “BASIX-development” as ‘it involves the erection, but not the relocation, of a BASIX building’, and is not an excluded form of development under the EPA Regulation. Accordingly, the DA, as amended, must be accompanied by a BASIX certificate.

  3. Chapter 2 of the Sustainable Building SEPP provides that Schs 1 and 2 set the standards for BASIX development.

  4. Section 2.1 relevantly provides:

Schedule 1 sets out the standards that apply to BASIX development referred to in paragraphs (a) and (b) of the definition of BASIX development in the Environmental Planning and Assessment Regulation 2021.

…

(5) Development consent must not be granted to development to which the standards specified in Schedule 1 or 2 apply unless the consent authority is satisfied the embodied emissions attributable to the development have been quantified.

  1. In accordance with s 2.1(5), development consent must not be granted to development to which Sch 1 applies unless the consent authority is satisfied that the embodied emissions attributable to the development has been quantified.

  2. An updated BASIX Certificate prepared by Bonnefin Consulting dated 16 October 2024 accompanies the DA, as amended, which outlines measures proposed in the development to meet relevant energy and water efficiency targets. The embodied energy report forms part of the online BASIX tool which is covered by the BASIX Certificate (s34 agreement bundle, Tab 7).

  3. Condition 56 also requires the proposed development to be carried out in accordance with the BASIX certificate and schedule of commitments approved in the conditions of consent.

  4. The parties submit and I accept that the embodied emissions attributable to the proposed development have been quantified.

Tweed Local Environment Plan 2014 (LEP)

Permissibility

  1. The site is zoned E1 Local Centre under the LEP’s Land Zoning Map. Development for the purposes of ‘shop-top housing’ is permissible with consent in the E1 zone under the LEP.

Clause 4.3 – Height of buildings

  1. Under cl 4.3 of the LEP, the maximum height for the site is 13.6m as shown on the Height of Buildings Map. The DA, as amended, is accompanied by a revised cl 4.6 written request prepared by Ardill Payne and Partners dated 8 October 2024 to vary the height standard (s34 agreement bundle, Tab 5).

  2. The building’s height exceedance by 1.16m is in essentially to facilitate flood mitigation and compliant ceiling heights. The proposal otherwise has a maximum exceedance of 3.95m at its highest point which equates to a variation of 29.4% to the 13.6m building height standard under cl 4.3. The maximum 3.95m variation is limited to the proposed lift overrun which facilitates access to the rooftop COS which has been included to improve the amenity for future residents.

  3. The revised cl 4.6 variation request concludes that strict compliance with the building height standard in this instance is unreasonable and unnecessary and there are sufficient environmental planning grounds to justify contravening the development standard.

  4. In accordance with cl 4.6 of the LEP, the Council is satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development is consistent with the objectives of cl 4.3 and the E1 Local Centre zone for the reasons set out in the written request.

  5. The parties submit and I accept that the matters required to be satisfied under cl 4.6 of the TLEP have been addressed in the written request and the variation is therefore upheld.

Clause 4.4 – Floor space ratio (FSR)

  1. Under cl 4.4 of the LEP, the maximum floor space ratio FSR applicable to the site is 2:1 as shown on the Floor Space Ratio Map. This equates to a maximum permissible gross floor area of 1828.4m2 based on the site’s area of 914.2m2.

  2. The proposed gross floor area for the DA as amended is 1292m2, equating to a FSR of 1.41:1, which sits well below the permitted 2:1 standard.

Clause 5.10 – Heritage conservation

  1. The site is a vacant urban lot that has been the subject of prior clearing and is situated in a built urban environment. It is not mapped or otherwise identified as a listed heritage item or as being within a heritage conservation area, nor is it within the vicinity of any heritage item or conservation area.

Clause 5.21 – Flood planning

  1. On 5 May 2017, Tweed Local Environmental Plan 2014 (Amendment No 20) amended the LEP to omit Flood Planning Maps. Updated and accurate flood datasets for the local area are managed by the Council.

  2. Clause 5.21 relevantly provides:

…

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

  1. The site is partially within the 1-in-100-year flood planning level based on Tweed Shire Council’s flood mapping and report (Class 1 Application, Tab 16). The proposed development has been designed to ensure that the office on the ground floor will have a floor level of 3.3m, which is well above the flood mitigation design floor level of 2.9m.

  2. The flooding related matters have also been addressed by the parties’ engineering experts and the revised Stormwater Management Plan (SMP) (s34 agreement bundle, Tab 6).

  3. The Council accepts that the proposed development will not adversely affect flood behaviour in a way that would result in detrimental increases in the potential flood affectation of other development or properties. The SMP demonstrates that with appropriate mitigation, runoff rates post development do not exceed the pre-development rates for all events up to 1% AEP and further that the peak 1% AEP rate does not exceed 200 L/s/Ha which equates to 18.3 L/s for the site (s34 agreement bundle, Tab 6).

  4. The proposed garden and drainage design have been augmented with the provision of ground grading away from internal building areas and overflow relief out through external garden walls to minimise the risks of flooding of internal building areas (JER Engineering, p 10).

  5. The parties’ experts agree that the proposed installation of a duckbill non-return valve in the OSD outlet to prevent backwater and debris in flood waters from flowing into the OSD in more frequent flooding events is a suitable preventative and protective measure (JER Engineering, p 11).

  6. The Council accepts that the proposed development will not adversely impact flood behaviour as a result of climate change, and it will be constructed in a manner that is compliant with flood mitigation and provide flood free residential accommodation in the event of a flood.

  7. The parties submit and I accept that the proposed development satisfies the matters in subcll 5.21(2) and (3) and that the site is suitable for the proposed development.

Clause 7.1 – Acid sulfate soils

  1. Clause 7.1 of the LEP relates to acid sulfate soils and aims to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

  2. Under the LEP, the site is mapped as Class 3 pursuant to cl 7.1 and the Acid Sulfate Soils Map. The proposed development does not involve excavation greater than 1m below the natural ground surface or works which will lower the water table 1m below the surface, noting no basement is proposed in conjunction with the development.

  3. In any event, the DA, as amended, is accompanied by a Geotechnical and Acid Sulphate Soils Investigation (Class 1 Application, Tab 14) and an Acid Sulphate Soils Investigation and Management Plan (Exhibit PLM 1, Tab 5) to demonstrate that the site is suitable for the proposed development and that acid sulfate soil material can be appropriately managed in accordance with the Acid Sulfate Soils Manual.

  4. Condition 63 of the conditions of consent also requires works to be carried out in accordance with the approved Geotechnical and Acid Sulphate Soils Investigation and Acid Sulphate Soils Investigation and Management Plan.

Clause 7.2 – Earthworks

  1. Clause 7.2 of the LEP applies where development consent is required for earthworks. The DA, as amended, will require fill to be imported to the site to satisfy flood mitigation measures. Specifically, fill will be required to provide a finished floor level of 3.4m for the ground floor.

  2. Clause 7.2(3) relevantly provides:

(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development,

(i) the proximity to, and potential for adverse impacts on, any heritage item, archaeological site, or heritage conservation area.

  1. The proposed development is accompanied by a Geotechnical and Acid Sulphate Soils Investigation (Class 1 Application, Tab 14) and an Acid Sulphate Soils Investigation and Management Plan (Exhibit PLM 1, Tab 5) which provide an assessment against the matters in cl 7.2(3) and determines that the proposed development is capable of complying with the requirements subject to implementing the recommendations in the report. Compliance with the reports forms a condition of consent for the amended proposal in Condition 8 of the conditions of consent.

  2. The parties submit and I accept that the proposed development satisfies the considerations within cl 7.2 and that the site is suitable for the proposed development.

Clause 7.6 – Stormwater management

  1. Clause 7.6 relevantly provides:

…

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

  1. As mentioned above, a revised SMP accompanies the DA, as amended, which demonstrates that, with appropriate mitigation, runoff rates post development do not exceed the pre-development rates for all events up to 1% AEP and further that the peak 1% AEP rate does not exceed 200 L/s/Ha which equates to 18.3 L/s for the site (s34 agreement bundle, Tab 6).

  2. Condition 21 of the conditions of consent also requires a detailed stormwater management plan for permanent stormwater quality treatment to be provided in accordance with the SMP and the relevant provisions of the DCP, prior to the issue of a construction certificate.

  3. The parties submit and I accept that the proposed development satisfies the matters in cl 7.6(3).

Clause 7.10 – Essential services

  1. Clause 7.10 provides that:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

  1. The site is currently connected to all reticulated services including sewer, water, stormwater, electricity, telecommunications and constructed urban roads, with the proposed development to be duly connected to and serviced by such.

  2. The parties submit and I accept that the services listed in cl 7.10 are available and adequate arrangements have been made to ensure the proposed development is accordingly serviced.

Conditions of consent

  1. The parties submit and I accept that the matters raised in the public submissions have been addressed by the DA, as amended, the joint expert reports admitted into evidence during the hearing of the proceedings and the conditions of consent.

Notations and orders

  1. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

  2. 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.

  3. The Court notes that:

  1. Tweed Shire Council, as the relevant consent authority, pursuant to s 38 of the EPA Regulation, has approved the following amendments to development application no. DA23/0632, which were tendered to the Court on 31 October 2024:

  1. Schedule of Amendments prepared by Walsh Architects dated 8 October 2024;

  2. Architectural plans prepared by Walsh Architects:

Drawing

Description

Rev

Date

DA040

Proposed Site Plan

E

04/10/2024

DA101

Ground Floor Plan

E

04/10/2024

DA102

Level 1 Plan

E

04/10/2024

DA103

Level 2 Plan

E

04/10/2024

DA104

Level 3 Plan

E

04/10/2024

DA105

Roof Plan

E

04/10/2024

DA110

Storage Calculations

E

04/10/2024

DA200

Sections (Sheet 1 of 3)

E

04/10/2024

DA201

Sections (Sheet 2 of 3)

E

04/10/2024

DA202

Sections (Sheet 3 of 3)

E

04/10/2024

DA300

Elevations

E

04/10/2024

DA301

Elevations

E

04/10/2024

  1. Stormwater plans prepared by Ardill Payne and Partners:

Drawing

Description

Issue

Date

SMP01

Stormwater Management Plan - Groundfloor Drainage Layout Plan

G

06/09/2024

SMP02

Stormwater Management Plan - Level 1 Drainage Layout Plan

G

06/09/2024

SK01

Service Connection Site – Layout Plan

B

03/09/2024

SK02

Site Layout Plan with Easement Assessment

D

06/09/2024

  1. Design Verification Statement prepared by Walsh Architects dated 8 October 2024;

  2. Revised Clause 4.6 Written Request prepared by Ardill Payne and Partners, Revision B dated 8 October 2024;

  3. Stormwater Management Plan prepared by Ardill Payne and Partners, dated 6 September 2024; and

  4. BASIX Certificate 1375728M_03 dated 16 October 2024

  1. An order was made for the applicant to pay the respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the EPA Act as a result of the amendments in (1) above.

  1. The Court orders:

  1. The applicant's written request under cl 4.6 of the Tweed Local Environmental Plan 2014 seeking a contravention of the maximum height standard under cl 4.3 is upheld.

  2. The appeal is upheld.

  3. Development application No. DA23/0632 for the construction of a 4-storey mixed use building comprising ground floor office and car parking and shop top housing comprising 12 dwellings at 100-102 Hastings Road, Bogangar, also legally known as Lots 181 and 182 in DP 259164, is determined by the grant of consent, subject to the conditions set out in Annexure ‘A’.

……………….

S Dixon

Senior Commissioner of the Court

Annexure A (420814, pdf)

**********

Amendments

25 November 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, a typographical error in [18], [53], [76] and [83] of the judgment is corrected.

Decision last updated: 25 November 2024

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