Calderwood Heights Pty Ltd v Shellharbour City Council

[2021] NSWLEC 1302

Land and Environment Court

New South Wales

Medium Neutral Citation:

Calderwood Heights Pty Ltd v Shellharbour City Council [2021] NSWLEC 1302

Hearing dates:

Conciliation conference on 14 May, 2 June, 15 June 2021

Date of orders:

28 June 2021

Decision date:

28 June 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The Applicant is granted leave to amend its development application in accordance with the plans referred to in Condition A3 of Annexure “A”.

(2) The Appeal is upheld.

(3) Development Application No DA 0290/2018 for the subdivision of proposed Lot 100 and Lot 101 (in the subdivision of Lot 1 in DP 608238 that is the subject of the development consent granted to DA 0289/2018), 347 Calderwood Road, Calderwood Valley, to create 455 residential lots, residual parcels for roads, open space and drainage corridors, locations and concept for one district park and one local park, demolition of the existing residence, tree removal, site remediation, bulk earth and civil works, riparian corridor rehabilitation/vegetation management and residue lot is approved subject to the conditions set out in Annexure “A”.

Catchwords:

APPEAL – land subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, Sch 2 cl 3B

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

Land and Environment Court Act 1979, s 34

National Parks and Wildlife Act 1974, s 90

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Infrastructure) 2007, cl 104

State Environmental Planning Policy (State and Regional Development) 2011, Sch 7

State Environmental Planning Policy (State Significant Precincts) 2005, Appendix 15, cll 17, 17A, 18, 26, 27, 28, 30

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Water Management Act 2000, s 91

Category:

Principal judgment

Parties:

Calderwood Heights Pty Ltd (Applicant)
Shellharbour City Council (First Respondent)
Lendlease Communities (Australia) Limited (Second Respondent)

Representation:

Counsel:
P Lalich (Solicitor) (Applicant)
A Seton (Solicitor) (First Respondent)
A Galasso SC (Second Respondent)

Solicitors:
HWL Ebsworth (Applicant)
Marsdens Law Group (First Respondent)
Addisons (Second Respondent)

File Number(s):

2018/295957

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal is lodged by the Applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns DA 0290/2018 (DA) seeking consent for land subdivision. The DA is “regionally significant development” within the meaning of Schedule 7 of State Environmental Planning Policy (State and Regional Development) 2011, in turn the Southern Regional Planning Panel is the consent authority. The appeal is against deemed refusal.

Context

2. The development site is at present legally described as Lot 1 in DP 608238. It is known as 347 Calderwood Road, Calderwood Valley (site).  The proposal is for subdivision to create 455 residential lots, residual parcels for roads, open space and drainage corridors, locations and concept for one district park and one local park, demolition of the existing residence, tree removal, site remediation, bulk earth and civil works, riparian corridor rehabilitation/vegetation management and residue lot.

3. The proposal would form part of the staged development of Calderwood Urban Development Project. It is related to a development application described as DA 0289/2018, which has also been before the Court (Proceedings 2018/295939), and also concerned with the subdivision of existing Lot 1 in DP 608238. DA 0289/2018 would precede DA 0290/2018 (the DA before me here), creating proposed Lots 100 and 101 for procedural purposes. The DA before me would follow, further subdividing proposed Lots 100 and 101 into lots for residential accommodation and providing for associated development, as described above.

Conciliation

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), initially on 14 May 2021, and at which I presided. In the course of conciliation, the parties provided an 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 development consent to the development application subject to conditions.

5. In this instance, after the filing of the agreement, but prior to final orders being handed down by the Court, the parties advised me that a modification to a relevant planning instrument had come into effect (Calderwood Concept Plan No MP 09_0082 – Modification 4). This modification (Mod 4) warranted consideration in the proceedings and some further time was taken to consider any implications. Ultimately, Mod 4 had no effect on the agreement between the parties.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties outlined matters of relevance to me in coming to a judgment in these proceedings, including through provision of notes on jurisdiction dated 13 and 16 May 2021 and 21 June 2021, in which the parties submitted that agreed orders recommended by the parties constitute a decision that the Court can make in the proper exercise of its functions. I have considered this material provided by the parties in coming to my own determination. In coming to this determination, I note the following.

Jurisdictional considerations

Environmental Planning and Assessment Act 1979

8. Notification requirements under the EPA Act have been complied with, with the DA publicly exhibited for 21 days between 12 July 2018 to 1 August 2018. I went through the submissions objecting to the proposal with the parties during the conference. The submissions have been considered in accordance with the requirements of s 4.15(1)(d) of the EPA Act.

9. The application is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal would also require approvals under:

1. Section 91 of the Water Management Act 2000;

2. Section 100B of the Rural Fires Act 1997; and

3. Section 90 of the National Parks and Wildlife Act 1974.

10. I accept the advice of the parties, and have viewed the evidence, that:

1. The Rural Fire Service issued general terms of approval in respect to the DA on 13 August 2018. A copy of the general terms of approval is appended to the proposed Conditions of Consent at Part H - Agency Approvals;

2. The National Resources Access Regulator issued general terms of approval in respect to the DA on 3 September 2018. A copy of the general terms of approval is appended to the proposed Conditions of Consent at Part H - Agency Approvals;

3. The Office of Environment and Heritage has issued general terms of approval in respect to the DA. A copy of the general terms of approval is appended to the proposed Conditions of Consent at Part H - Agency Approvals.

Consistency with concept plan approval

11. The site forms part of the land the subject of the Calderwood Concept Plan No MP 09_0082. In turn cl 3B(2)(d) of Schedule 2 of Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 applies, which states:

a consent authority must not grant consent under Part 4 (of the then EPA Act) for the development unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan.

12. The parties advise that the development as proposed is generally consistent with the terms of the approval of the concept plan. With the assistance of the parties, I have worked through the concept plan (as modified, and including in regard to Mod 4 as introduced above [5]) and find that I am satisfied that the development is generally consistent with the terms of the approval of this concept plan. Of particular note are:

1. There are no lots proposed below the minimum lot size as required by Condition B6, as indicated in the Plan of Subdivision prepared by Terry Edward Bartlett dated 30 March 2021, referred to at Condition A3 of the proposed Conditions of Consent;

2. Condition B7 has been considered and arrangements have been made to ensure consolidation of the Environmental Land as confirmed by conditions F1 and F11 of the Conditions of Consent and the Lot Mix Plan (Rev 10) prepared by Sitios dated 13 May 2021, referred to at Condition A3 of the proposed Conditions of Consent;

3. The DA achieves the orderly and coordinated development of the site, as required by Condition C1 of the Concept Plan Approval. This is demonstrated by the General Layout Plan, Plan 001, Project No 17-105, Revision G (dated 6/05/2021) as referred to at Condition A5 of the Conditions of Consent;

4. The general layout and structure of the drainage, infrastructure, riparian corridor and roads proposed by the subdivision is consistent with that of the Concept Plan Approval, as demonstrated by the Lot Mix Plan referenced at Condition A3 and material otherwise provided to me by the parties concerned with the consistency test;

5. Provision has been made for the future management of the Environmentally Sensitive Lands in accordance with Condition C3 of the Concept Plan Approval, as confirmed by conditions F1 and F11 of the Conditions of Consent;

6. Provision has been made for the servicing of the site, noting the requirements of Condition 11 of the Concept Plan Approval. This is demonstrated by the Sydney Water servicing correspondence dated 11 January 2019, as appended to the Conditions of Consent at Part H - Agency Approvals. I also accept the advice of the parties that adequate arrangements are in place for other public utility infrastructure essential for the proposed development;

7. The requirements of conditions C12(a)-(c) of the Concept Plan Approval, which requires the provision of local infrastructure, have been satisfied by way of the Letter of Offer and draft Voluntary Planning Agreement dated 13 May 2021, being Annexure "A" to the Conditions of Consent, as confirmed by Condition B30 of the Conditions of Consent;

8. Condition C12(d) of the Concept Plan Approval, which requires the provision of local infrastructure, specifically the upgrade of Calderwood Road from the site boundary to the Tripoli Way Extension (TMAP Item 32), has been satisfied. I accept the advice of the parties in regard to the commercial agreement to this effect between the First and Second Respondents;

9. The appropriate arrangements are in place regarding the Concept Plan Approval - Statement of Commitments, including in regard to ongoing community information and consultation, as confirmed by Condition B1A of the Conditions of Consent;

10. I note that Schedule 2 of Mod 4 defines the site as “non-core lands”, and that Mod 4 is principally concerned with “core lands”. Indeed I note that certain provisions of Mod 4 directly seek to ensure that non-core lands are not adversely affected with the coming into effect of Mod 4 (eg Conditions A8 and C1(3)). The parties have taken me through the provisions of Mod 4 to a level of detail and, given the the focus of the additional (Mod 4) conditions are generally not towards the non-core lands, I need go little further here than stating that I am satisfied that the proposed development is generally consistent with the terms of the approval of the concept plan as modified, including in regard to Mod 4. I will mention that, in regard to Condition C5 (concerned with traffic assessment and somewhat more open in its form), I am satisfied that the proposal is generally consistent with the terms of this condition and that due regard has been had to the reference traffic modelling in the submitted detailed traffic assessment.

State Environmental Planning Policy (State Significant Precincts) 2005 – Appendix 15

13. State Environmental Planning Policy (State Significant Precincts) 2005 applies, with the site falling within the bounds of Appendix 15 (“Calderwood site”).

14. Under Appendix 15, the site is partially zoned R1 General Residential and partially zoned E3 Environmental Management. I have had regard to the objectives for development in each zone.

15. Subdivision is permissible under cl 17 and demolition under cl 17A.

16. There are no lots proposed below the minimum lot size as required by cl 18. This is demonstrated in the Plan of Subdivision prepared by Terry Edward Bartlett dated 30 March 2021 referred to at Condition A3 of the Conditions of Consent.

17. The requirements of cl 26(3) in relation to flood planning have been satisfied, as demonstrated by the Water Cycle Management Study prepared by Cardno dated 29 August 2019, referenced at Condition A3 of the proposed Conditions of Consent.

18. Clause 27, regarding places of Aboriginal significance, has been addressed and general terms of approval have been issued by the Office of Environment and Heritage, as appended to the proposed Conditions of Consent at Part H - Agency Approvals.

19. Clause 28, requiring adequate arrangements be made for essential public utility infrastructure, has been satisfied, see Sydney Water servicing correspondence dated 11 January 2019, as appended to the Conditions of Consent at Part H - Agency Approvals.

20. Clause 30 restricting subdivision unless the Secretary has certified in writing that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure has been satisfied. Satisfactory Arrangements certification (SVPA-2018-9795) was issued by the Secretary in September 2020.

State Environmental Planning Policy (Infrastructure) 2007 (ISEPP)

21. Clause 104 of the ISEPP applies as the proposed development involves a subdivision of land of 200 or more allotments including the opening of a public road. Written notice to Transport for NSW has been given in accordance with subcl (3) and its response dated 7 August 2018 has been provided to me, and taken into consideration. In addition I have taken into consideration the accessibility of the site and potential traffic safety, road congestion and parking implications of the development. Useful here was a Road Safety Audit included in the Cardno traffic report (21 May 2018).

Contamination - State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

22. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of SEPP 55. Based on the conclusions of the Detailed Site Investigation Report prepared by Cardno dated 4 September 2019, I am satisfied that the site can be made suitable for the proposed use.

Conclusion

23. I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

24. 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 proposal generally.

25. The Court orders:

1. The Applicant is granted leave to amend its development application in accordance with the plans referred to in Condition A3 of Annexure “A”.

2. The Appeal is upheld.

3. Development Application No DA 0290/2018 for the subdivision of proposed Lot 100 and Lot 101 (in the subdivision of Lot 1 in DP 608238 that is the subject of the development consent granted to DA 0289/2018), 347 Calderwood Road, Calderwood Valley, to create 455 residential lots, residual parcels for roads, open space and drainage corridors, locations and concept for one district park and one local park, demolition of the existing residence, tree removal, site remediation, bulk earth and civil works, riparian corridor rehabilitation/vegetation management and residue lot is approved subject to the conditions set out in Annexure “A”.

……………………….

P Walsh

Commissioner of the Court

Annexure A updated (1557873, pdf)

Streetscape Masterplan prepared by TaylorBrammer Landscape Architects - Various Revisions and Dates (13678094, PDF)

Subdivision Plans DA 2 Stage 1 prepared by T Bartlett - dated 31 March 2021 (1) (3655763, PDF)

Subdivision Plans DA 2 Stage 2 prepared by T Bartlett - dated 31 March 2021 (1331803, PDF)

Subdivision Plans DA 2 Stage 3 prepared by T Bartlett - dated 1 April 2021 (228009, PDF)

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Decision last updated: 28 June 2021