Calderwood Heights Pty Ltd v Shellharbour City Council

[2021] NSWLEC 1300

Land and Environment Court

New South Wales

Medium Neutral Citation:

Calderwood Heights Pty Ltd v Shellharbour City Council [2021] NSWLEC 1300

Hearing dates:

Conciliation conference on 14 May 2021

Date of orders:

17 June 2021

Decision date:

17 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 A2 of Annexure “A”.

(2) The Appeal is upheld.

(3) Development Application No DA 0289/2018 for the subdivision of Lot 1 DP 608238, 347 Calderwood Road, Calderwood Valley, to create two lots (Super Lots) 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

Rural Fires Act 1997, s 100B

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

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

Category:

Principal judgment

Parties:

Calderwood Heights Pty Ltd (Applicant)
Shellharbour City Council (Respondent)

Representation:

Counsel:
P Lalich (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2018/295939

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 0289/2018 (DA) seeking consent for land subdivision. The site is legally described as Lot 1 in DP 608238, known as 347 Calderwood Road, Calderwood Valley (site).

2. The proposed lots will have areas of 18.65 ha (proposed Lot 100) and 18.12 ha (proposed Lot 101). The appeal is against the deemed refusal by Shellharbour City Council (Council).

Context

3. The proposal would form part of the staged development of Calderwood Urban Development Project. The parties describe the proposed subdivision as a “paper subdivision”, creating two "super lots" for further later subdivision. For what is may be worth, I note that the proposal before me here is related to another appeal (Proceedings 2018/295957) which involves a development application proposing the further subdivision of the two super lots proposed with the application before me now.

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), which was held on 14 May 2021, and at which I presided. After the conciliation conference, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

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, 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 and 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 Section 100B of the Rural Fires Act 1997. I accept the advice of the parties, and have viewed the evidence, that the Rural Fire Service issued general terms of approval in respect to the DA on 4 July 2018. 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

10. 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.

11. The parties advise that the development as proposed is generally consistent with the terms of the approval of the concept plan. I have worked through the concept plan (as modified) with the assistance of the parties 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 is that 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 A2 of the proposed Conditions of Consent.

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

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

13. 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.

14. Subdivision is permissible under cl 17.

15. There are no lots proposed below the minimum lot size as required by cl 18.

16. 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. I also accept the advice of the parties that adequate arrangements are in place for other public utility infrastructure essential for the proposed development.

17. 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. I accept the parties’ advice that the Satisfactory Arrangements certification (SVPA-2018-9795) was issued by the Secretary in September 2020.

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

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

Conclusion

19. 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.

20. 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.

21. The Court orders:

1. The Applicant is granted leave to amend its development application in accordance with the plans referred to in Condition A2 of Annexure “A”.

2. The Appeal is upheld.

3. Development Application No DA 0289/2018 for the subdivision of Lot 1 DP 608238, 347 Calderwood Road, Calderwood Valley, to create two lots (Super Lots) is approved subject to the conditions set out in Annexure “A”.

P Walsh

Commissioner of the Court

Annexure A v2 (525566, pdf)

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Decision last updated: 17 June 2021