Cambewarra Holdings Pty Ltd as trustee for the Cambewarra Property Trust v Shoalhaven City Council

[2024] NSWLEC 1754

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cambewarra Holdings Pty Ltd as trustee for the Cambewarra Property Trust v Shoalhaven City Council [2024] NSWLEC 1754

Hearing dates:

Conciliation Conference 15 November 2024

Date of orders:

26 November 2024

Decision date:

26 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to DA2023/3049, as amended, for the use of the land for extensive agriculture, erection of a shed and cattle yard and clearing of regrowth vegetation at Lot 3 in Deposited Plan 812277 and access over Lot 56 in Deposited Plan 751273, known as 26 Browns Mountain Road Tapitallee, subject to the conditions of consent at Annexure A.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of amending the development application, as agreed or assessed.

Catchwords:

APPEAL – Development application – extensive agriculture - conciliation conference – agreement between the parties - orders

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.2, 7.7

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7, 8.10, 8.11

Land and Environment Court Act 1979, ss 17, 34

Biodiversity Conservation Regulation 2017, Pt 7, cl 7.1

Environmental Planning and Assessment Regulation 2021

Shoalhaven Local Environmental Plan 2014, 4.3, 4.4, 5.21, 7.1, 7.2, 7.5, 7.6, 7.7, 7.11

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, s 4.9

State Environmental Planning Policy (Resilience and Hazards) 2021

Texts Cited:

Shoalhaven Development Control Plan 2014

Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

Cambewarra Holdings Pty Ltd as trustee for the Cambewarra Property Trust (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
S Frost (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/39788

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s deemed refusal of the applicant’s development application (DA2023/3049) (Development Application) seeking consent for the clearing of vegetation, earthworks, construction of a shed and cattle yard and use of the land for extensive agriculture on land identified as Lot 3 in Deposited Plan 812277, known as 26 Browns Mountain Road, Tapitallee (Lot 3). In addition, the Development Application seeks consent for access to Lot 3 through Lot 56 in Deposited Plan 751273 (Lot 56). Lot 3 and Lot 56 collectively comprise the Subject Land.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Development Application was lodged on 7 November 2023.

4. The Development Application was notified between 14 and 28 November 2023. Nine written submissions were received objecting the Development Application.

5. On 1 February 2024, the proceedings were commenced against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 8 August 2024, the parties reached agreement as to the resolution of this matter. The parties requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 15 November 2024. I presided over the conciliation conference.

7. A signed s 34 agreement and amended plans and additional documents were filed with the Court on 28 October 2024 (cited at [48]). The amendments included:

1. updated civil plans;

2. a Bushfire Assessment Report prepared by Australian Bushfire Consulting Services dated 27 June 2024 (Bushfire Report);

3. a Flora and Fauna Assessment Report prepared by EcoPlanning dated 18 July 2024 (2024 Flora and Fauna Report);

4. evidence of landowners’ consent;

5. an addendum to the Farm Plan;

6. A Weed Management Plan prepared by EcoPlanning dated 17 October 2024; and

7. Waste Management Plan prepared by Cambewarra Holdings dated 19 August 2024,

(collectively, the October Amendments).

8. The Class 1 Application and October Amendments (to the extent earlier documents are not superseded by later documents/amendments) comprise the Amended Development Application.

9. The agreement reached is for the Amended Development Application to be granted, subject to conditions. The signed agreement is supported by a jurisdictional statement.

10. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow.

Jurisdictional considerations

Owner’s consent

11. Cambewarra Holdings Pty Ltd is the registered proprietor of the Subject Land and provided its owners’ consent to the lodgement of the Development Application (see letters dated 22 May 2023 and 29 July 2024).

12. In addition, the Amended Development Application proposes to utilise a Crown road between Lot 3 and Lot 56 (Crown Road) which is relevantly owned by the Department of Housing & Infrastructure (DHI). DHI has provided its owners consent to the Development Application insofar as access is required over the Crown Road (see letter from DHI dated 17 April 2024).

Biodiversity Conservation Act 2016

13. Development is required to be accompanied by a biodiversity development assessment report pursuant to s 7.7(2) of the Biodiversity Conservation Act 2016 (BC Act) if the development is likely to significantly affect threatened species. In that regard, s 7.2 of the BC Act states:

(1)    For the purposes of this Part, development or an activity is likely to significantly affect threatened species if—

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or

(c) it is carried out in a declared area of outstanding biodiversity value.

14. The Amended Development Application is accompanied by the 2024 Flora and Fauna Report which demonstrates that the proposal is not likely to significantly affect threatened species or ecological communities or their habitats.

15. Pursuant to cl 7.1 of the Biodiversity Conservation Regulation 2017 (BC Regulation), development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the BC Act if it involves the clearing of native vegetation on land included of the Biodiversity Values Map.

16. Whilst the Subject Land includes land mapped on the Biodiversity Values Map, no clearing is proposed within the mapped portion of the site.

17. The Subject Land is not declared as an area of outstanding biodiversity value.

18. Having regard to the above, the Court can be satisfied that the development application is not required to be accompanied by a biodiversity development assessment report.

Environmental Planning and Assessment Act 1979

19. The parties agree that the Amended Development Application does not constitute integrated development.

20. Section 4.14(1)(a) of the EPA Act relevantly provides that development consent cannot be granted for the carrying out of development on bush fire prone land unless the consent authority is satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection (PBFP) that are relevant to the development.

21. Section 4.14(1) of the EPA Act applies to the Amended Development Application as the Subject Land is mapped as containing bush fire prone land. The parties agree that the requirements of s 4.14(1)(a) of the EPA Act have been met having regard to the findings in the Bushfire Report.

22. In determining the Development Application, I confirm that I am satisfied that the Amended Development Application complies with the relevant specifications and requirements of PBFP, having regard to the Bushfire Report.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. Chapter 4 “Koala habitat protection 2021” of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Subject Land. Section 4.9 of the BC SEPP applies to the Amended Development Application as the Subject Land has an area of at least 1 hectare and there is no approved koala plan of management applying to the Subject Land.

25. Section 4.9 of the BC SEPP relevantly provides that:

(2)  Before a council may grant consent to a development application for consent to carry out development on the land, the council must assess whether the development is likely to have any impact on koalas or koala habitat.

(3)  If the council is satisfied that the development is likely to have low or no impact on koalas or koala habitat, the council may grant consent to the development application.

26. The parties agree that the Amended Development application will have no impact on koalas or koala habitat for the purposes of s 4.9(3) of the BC Act. In determining the Amended Development Application, I confirm that I am satisfied that the development is likely to have low or no impact on koalas or koala habitat having regard to p 41 of the Flora and Fauna Assessment prepared by EcoPlanning dated 25 October 2023 (2023 Flora and Fauna Report) (see tab 14 of the Class 1 Application).

Shoalhaven Local Environmental Plan 2014

27. The Subject Land is zoned RU4 – Primary Production Small Lots under the Shoalhaven Local Environmental Plan 2014 (SLEP). Accordingly, the proposed use of Lot 3 for extensive agriculture is permissible with consent in the RU4 zone. I have had regard to the zone objectives which are extracted below:

•  To enable sustainable primary industry and other compatible land uses.

•  To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

28. Pursuant to cl 4.3 of the SLEP, the maximum building height permissible for the Subject Land is 11m. The parties agree that the Amended Development Application complies with this standard.

29. For the purposes of cl 4.4 of the SLEP regarding maximum floor space, the parties agree that a maximum floor space ratio for the Subject Land is not prescribed by the Floor Space Ratio Map.

30. Pursuant to cl 5.21 of the SLEP, consent must not be granted to development relevantly within the flood planning area unless the consent authority is satisfied of the matters listed in cl 5.21(2) and has considered the matters listed in cl 5.21(3) of the SLEP. The parties agree that the Subject Land is partly identified in the 1% AEP event map around the existing watercourse. The proposed structures are located outside of the 1% AEP event. The parties agree that the Amended Development Application does not impact, and is compatible with, the flood function and behaviour of the land. Further, there is no work proposed to the existing watercourse and there will be no impacts on the riparian areas.

31. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 5.21(3) and am satisfied of the matters listed in cl 5.21(2), having regard to the agreement of the parties and p 10 of the SEE.

32. Pursuant to cl 7.1 of the SLEP relating to Acid Sulfate Soils, the Subject Land is mapped as Class 5. The parties agree that the Amended Development Application will not lower the water table by 1 metre, so this provision does not apply.

33. Pursuant to cl 7.2 of the SLEP, a consent authority must consider various matters in deciding whether to grant development consent for earthworks. The parties agree that the extent of the proposed earthworks will not result in any detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items, or features of the surrounding land. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 7.2(3) of the SLEP having regard to the agreed position of the parties, p 11 of the SEE and the Agreed Conditions (see for example, Conditions 18, 23, 32 and 33).

34. Clause 7.5 of the SLEP relating to terrestrial biodiversity applies to the Amended Development Application as the Subject Land is partially mapped on the Terrestrial Biodiversity Map, primarily in the vicinity of the watercourse. Pursuant to cl 7.5 of the SLEP, the consent authority must consider the matters listed in cl 7.5(3) and be satisfied of the matters listed in cl 7.5(4) prior to granting consent. The parties agree that the matters listed in cl 7.5(3) and (4) are addressed in the 2024 Flora and Fauna Report.

35. In determining the Amended Development Application, I confirm that I have considered the matter listed in cl 7.5(3) and am satisfied of the matters listed in cl 7.5(4) of the SLEP, having regard to the 2024 Flora and Fauna Report and Conditions 6 to 16 of the Agreed Conditions.

36. Clause 7.6 of the SLEP relating to riparian land and watercourses applies to the Amended Development Application as the Subject Land is identified on the Riparian Lands and Watercourses Map. Pursuant to cl 7.6 of the SLEP, the consent authority must consider the matters listed in cl 7.6(3) and be satisfied of the matters listed in cl 7.6(4) prior to granting consent. The parties agree that the matters listed in cl 7.6(3) and (4) are addressed in the 2024 Flora and Fauna Report.

37. In determining the Amended Development Application, I confirm that I have considered the matter listed in cl 7.6(3) and am satisfied of the matters listed in cl 7.6(4) of the SLEP, having regard to the 2024 Flora and Fauna Report and Conditions 6 to 16 of the Agreed Conditions.

38. Clause 7.7 of the SLEP relating to landslide risk and other land degradation applies to the Amended Development Application as the Subject Land is identified as a “Sensitive Area” on the Natural Resources Sensitive – Land Map. Pursuant to cl 7.7 of the SLEP, the consent authority must consider the matters listed in cl 7.7(3) and be satisfied of the matters listed in cl 7.7(4) prior to granting consent. The parties agree that the Amended Development Application does not propose works on land with a slope in excess of 20% nor land identified as a “sensitive area” as discussed at pp 39-40 of the 2023 Flora and Fauna Report.

39. In determining the Amended Development Application, I confirm that I have considered the matter listed in cl 7.7(3) and am satisfied of the matters listed in cl 7.7(4) of the SLEP, having regard to the agreed position of the parties and the 2023 Flora and Fauna Report.

40. Pursuant to cl 7.11 of the SLEP, the parties agree that the Subject Land is connected to all essential services required to carry out the proposed development.

Shoalhaven Development Control Plan 2014

41. The parties agree that the Shoalhaven Development Control Plan 2014 has been considered in the determination of the Amended Development Application.

Remaining matters in s 4.15(1) of EPA Act

42. In determining the Amended Development Application and noting the above, I have taken into consideration the matters listed in s 4.15(1)(a), (b), (c) and (e) of the EPA Act as are of relevance to the Amended Development Application.

43. For the purposes of s 4.15(1)(d) of the EPA Act, the Development Application was notified between 14 and 28 November 2023. Nine written submissions were received objecting the Development Application, primarily raising concerns in relation to:

1. clearing and loss of mature trees;

2. impacts on bush fire recovery in the area;

3. lack of consideration of aquatic species;

4. lack of consideration of endangered species;

5. risks to biodiversity and soil structure;

6. inadequate consideration of riparian land;

7. potential pollution;

8. inadequate consideration of flora and fauna impacts; and

9. inadequate consideration of waste management.

44. Residents were invited to make further submissions in relation to the October Amendments but no submissions were received.

45. I am satisfied that the submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

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

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

48. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA2023/3049 in accordance with the documents listed below:

Plans	Drawing	Drawn By	Date
Civil Plans	21046-103- 108 Revision 6	CivPlan Development & Infrastructure Consulting	23 October 2024

Documents	Date
ABCS Bushfire Assessment Report	27 June 2024
Flora and Fauna Assessment Report	18 July 2024
Landowners Consent - Department of Housing and Infrastructure	17 April 2024
Landowners Consent - Lot 56 of DP 751273	29 July 2024
Addendum to Farm Plan	12 July 2024
Weed Management Plan prepared by EcoPlanning	17 October 2024
Waste Management Plan prepared by Cambewarra Holdings	19 August 2024

2. The above documents were filed with the Court on 28 October 2024.

Orders

49. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA2023/3049, as amended, for the use of the land for extensive agriculture, erection of a shed and cattle yard and clearing of regrowth vegetation at Lot 3 in Deposited Plan 812277 and access over Lot 56 in Deposited Plan 751273, known as 26 Browns Mountain Road Tapitallee, subject to the conditions of consent at Annexure A.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of amending the development application, as agreed or assessed.

N Targett

Commissioner of the Court

Annexure A

**********

Decision last updated: 26 November 2024