Cedar Ranch Pty Ltd v Central Coast Council

[2024] NSWLEC 1164

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cedar Ranch Pty Ltd v Central Coast Council [2024] NSWLEC 1164

Hearing dates:

Conciliation Conference 29 and 30 January 2024

Date of orders:

12 April 2024

Decision date:

12 April 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

Proceedings 2023/21216

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No DA/1020/2022 for a boundary adjustment between lots 33 and 65 in deposited plan 755261 is determined by the grant of consent subject to conditions set out in Annexure A.

Proceedings 2023/21235

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA/1972/2022 is determined by the grant of consent subject to conditions set out in Annexure B.

(3) The applicant is to file the amended development application as approved by the respondent and set out in condition 1.1 of Annexure B within seven (7) days of the date of this order.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.2, 7.3, 7.4

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.46, 4.63 8.7, 8.10, 8.11, 8.14, 8.15, 10.3

Land and Environment Court Act 1979, ss 17, 34, 34AA

Local Land Services Act 2013, s 60O

Rural Fires Act 1997, s 100B

Biodiversity Conservation Regulation 2017, s 7.2

Central Coast Local Environmental Plan 2022 cl 1.8A

Environmental Planning and Assessment Regulation 2021, s 37, 38, 68

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 4

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

State Environmental Planning Policy (Sustainable Buildings) 2022 s 4.2

Wyong Local Environmental Plan 1991, cl 16

Wyong Local Environmental Plan 2013 cll 2.6, 4.1, 4.2B, 4.2C, 5.21, 7.4, 7.9

Texts Cited:

Wyong Development Control Plan 2013

Category:

Principal judgment

Parties:

Cedar Ranch Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
A Rutherford (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/21216
2023/21235

Publication restriction:

No

Judgment

1. COMMISSIONER: This judgment deals with the following two appeals:

1. Proceedings 2023/21216 (Subdivision Proceedings) – an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of the applicant’s development application (DA/1020/2022) (Subdivision DA) for a boundary adjustment between Lot 65 in Deposited Plan 755261 (Lot 65) and Lot 33 in Deposited Plan 755261 (Lot 33), collectively known as 227 Brush Creek Road, Cedar Brush Creek (Subdivision DA Land).

2. Proceedings 2023/21235 (Dwelling Proceedings) – an appeal against the respondent’s refusal of the applicant’s development application (DA No DA/1972/2022) (Dwelling DA) for the construction of a dwelling, including a swimming pool, effluent disposal, parking, and access on Lot 65.

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). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

Background

3. The Subdivision DA, lodged with the respondent on 22 April 2022, sought consent for the subdivision, by way of a “boundary adjustment” of Lots 33 and 65. Specifically, the Subdivision DA sought to alter the existing arrangement of Lots 33 and 65 by adding a portion of Lot 33, that is currently bounded by Brush Creek Road and Cedar Brush Creek, to the land that is Lot 65 as follows:

Lot	Existing (ha)	Proposed (ha)
Lot 33 (Proposed Lot 2)	33.34	25.00
Lot 65 (Proposed Lot 1)	18.21	26.55

4. Presently, Lot 33 is bisected by Brush Creek Road, such that a portion of Lot 33 lies between Brush Creek Road and Cedar Brush Creek. The proposed boundary adjustment would have the effect of Lot 33 being a single lot lying to the west of Cedar Creek Road, and Lot 65 lying to the east of Brush Creek Road, but the lots will be bisected by Cedar Brush Creek.

5. Presently, Lot 65 is landlocked and only accessible via an easement over Lot 33. The proposed boundary adjustment would enable both lots to be independently accessed from Brush Creek Road.

6. Lot 65 has the benefit of a previous development consent for a dwelling house, however the dwelling was never constructed and the site is presently vacant. Lot 33 has an existing dwelling house and has previously been used to agist cattle.

7. Access and servicing arrangements were proposed to remain the same, with no works proposed under the Subdivision DA.

8. The Subdivision DA is integrated development pursuant to s 4.46 of the EPA Act as it proposes development which requires an approval under s 100B of the Rural Fires Act 1997 (RF Act).

9. On 10 January 2023, Subdivision DA was determined by way of refusal.

10. On 20 January 2023, the Subdivision Proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

11. The Dwelling DA as lodged with the respondent on 28 July 2022, sought the construction of a dwelling, including a swimming pool, effluent disposal, parking and access, on Lot 65.

12. On 20 January 2023, the Dwelling Proceedings were commenced against the deemed refusal of the Dwelling DA, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

13. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties in both proceedings on 14 July 2023, the matters were listed for hearing. Prior to the hearing, the parties reached agreement and requested that the matters be listed for another s 34 conference. The Court granted this request, and the matters were listed for a s 34 conference on 29 and 30 January 2024, following which the hearings were vacated. I presided over the conciliation conference.

14. Amended plans and additional documents were provided to the Court in respect of the Dwelling DA on 30 January 2024 as part of the further conciliation conference (Amended Dwelling DA). The amendments can be summarised as follows:

1. updated architectural, civil and other plans depicting, amongst other things, a reduced building footprint and roof extent, relocated carport and ground level retaining wall;

2. updated BASIX and NatHERS Certificates;

3. Aboricultural Impact Assessment prepared by Enviro Ecology, dated 11 October 2023;

4. Flora and Fauna Assessment prepared by Enviro Ecology dated 20 October 2023; and

5. Vegetation Management Plan prepared by Enviro Ecology, dated 5 December 2023; and

6. clarifying the inclusion of Lot 1 in Deposited Plan 1180732 (Lot 1) as part of the Dwelling DA for the purposes of the road, including the construction of a gate.

15. The agreement reached in the Subdivision Proceedings is for the Subdivision DA to be granted, subject to conditions. The signed agreement in the Subdivision Proceedings is supported by a jurisdictional statement.

16. The agreement reached in the Dwelling Proceedings is for the Amended Dwelling DA to be granted, subject to conditions. The signed agreement in the Dwelling Proceedings is supported by a jurisdictional statement.

17. 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.

Subdivision Proceedings

Owner’s consent

18. The Subdivision DA Land is owned by the applicant. The Subdivision DA was lodged on behalf of the applicant by its consultant surveyor, acting as its agent (see letter from the applicant to its consultant surveyor – Subdivision Proceedings - Class 1 Application, tab 3).

Wyong Local Environmental Plan 2013 (WLEP)

19. Despite its repeal, Wyong Local Environmental Plan 2013 (WLEP) continues to apply to the Subdivision DA. This is because cl 1.8A of the Central Coast Local Environmental Plan 2022 (CCLEP) relevantly provides that if a development application has been made before the commencement of the CCLEP (being 1 August 2022) and the application has not been finally determined before that commencement, the application must be determined as if the CCLEP had not commenced. As the Subdivision DA was lodged on 22 April 2022 and not finally determined by 1 August 2022, the WLEP continues to apply.

20. The Subdivision DA Land is zoned part C3 Environmental Management and RU1 Primary Production under the WLEP.

21. I have had regard to the zoning objectives of the C3 and RU1 zones which are extracted below:

Zone C3 Environmental Management

•  To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

•  To provide for a limited range of development that does not have an adverse effect on those values.

Zone RU1 Primary Production

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To encourage diversity in primary industry enterprises and systems appropriate for the area.

•  To minimise the fragmentation and alienation of resource lands.

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

•  To provide for non-agricultural land uses, including tourism, which support the primary production purposes of the zone.

•  To allow other appropriate and uses that are not suited to urban zones while maintaining the rural character of the land.

22. The parties agree that the development proposed by the Subdivision DA is consistent with the objectives of the C3 and RU1 zones.

23. Pursuant to cl 2.6 of the WLEP, subdivision is permissible with consent. Pursuant to cl 4.1 of the WLEP, a minimum lot size of 40ha applies to land zoned C3 and a minimum lot size of 20ha applies to land zoned RU1. However, cl 4.2C relevantly provides that land zoned RU1 or E3 may be subdivided by way of a boundary adjustment where one or more of the resultant lots do not meet the minimum lot size if the consent authority is satisfied of the following matters in cl 4.2C(3):

1. the subdivision will not create additional lots or the opportunity for additional dwellings, and

2. the number of dwellings on each lot after the subdivision will remain the same as before the subdivision, and

3. the potential for land use conflict will not be increased as a result of the subdivision, and

4. the subdivision will not have a significant adverse effect on the agricultural viability of the land, and

5. the subdivision will result in the continued protection and long term maintenance of the land.

24. Further, cl 4.2C(4) of the WLEP provides that before determining a development application for the subdivision of land under this clause, the consent authority must consider whether or not the subdivision is likely to be incompatible with, or have a significant adverse impact on, the predominant land uses in the vicinity of the subdivision.

25. The parties agree that the Court can be satisfied that, having regard to the nature and magnitude of the alteration in the boundary between the lots that is sought by the Subdivision DA, that the subdivision can be considered as being “by way of a boundary adjustment” for the purposes of cl 4.2C of the WLEP for the following reasons:

1. Each lot has its own existing right to a dwelling, and there are no additional entitlements for dwelling created by the proposed boundary adjustment.

2. Lot 33 has an existing dwelling, and Lot 65 has an existing approval for a dwelling, which is unchanged by the proposed boundary adjustment.

3. The parties are not aware of any potential for land use conflict and the boundary adjustment will allow for the RU2 zoned land to be on the same side of Brush Creek Road as its related dwelling house without any conflict with the road.

4. The boundary adjustment will facilitate the agricultural viability of the land by allocating the RU2 zoned land to the dwelling on the same side of the road.

5. The boundary adjustment would not alter the existing protection or maintenance of the E3 zoned land in either Lot 33 or Lot 65.

6. The boundary adjustment would result in no change to the predominant land uses in the vicinity. The change in property boundary will enable Lot 65 to have street access, as it is currently landlocked and only accessible via Lot 33.

26. Having regard to the above, I am satisfied of the matters listed in cl 4.2C(3) and have considered that the subdivision is unlikely to be incompatible with, or have a significant adverse impact on, the predominant land uses in the vicinity of the subdivision under cl 4.2C(4) of the WLEP.

27. The Subdivision DA Land is identified as within a “flood planning area” for the purposes of cl 5.21 of the WLEP. In determining the Subdivision DA, I have had regard to the nature of the Subdivision DA, being a boundary adjustment with no proposed works, and am satisfied of the matters in cl 5.21(2) and have considered the matters listed in cl 5.21(3) of the WLEP.

28. The Subdivision DA Land is identified as being within a “drinking water catchment” for the purposes of cl 7.4 of the WLEP. In determining the Subdivision DA, I have similarly had regard to the nature of the Subdivision DA, being a boundary adjustment with no proposed works, and have considered the matters listed in cl 7.4(3) and am satisfied of the matters listed in cl 7.4(4) of the WLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subdivision DA does not include any change to the use of the Subdivision DA Land that would result in concerns with respect to contamination.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

30. Chapter 2 “Vegetation in non-rural areas” and Chapter 4 “Koala habitat protection 2021” of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Conservation SEPP) apply to the Subdivision DA Land. The parties agree that these provisions do not pose any impediment to approval of the Subdivision DA. In determining the Subdivision DA, I am satisfied that the provisions of Chapter 2 and Chapter 4 of the Conservation SEPP do not pose an impediment to the approval of the Subdivision DA, on the basis that the proposed development is a boundary adjustment only with no proposed works.

Rural Fires Act 1997

31. The Subdivision DA Land is mapped as being “bushfire prone land” containing Category 1 and Category 2 Vegetation in accordance with s 10.3 of the EPA Act.

32. Section 4.14 of the EPA Act does not apply to the Subdivision DA as it does not apply to development for the purposes of a subdivision that could lawfully be used for residential or rural residential purposes.

33. Pursuant to s 100B(3) of the RF Act, a person must obtain a bush fire safety authority before developing bush fire prone land for the purpose of a subdivision that could lawfully be used for residential or rural residential purposes (see s 100B(1)(a)). The Commissioner of the NSW Rural Fire Service issued a bush fire safety authority for the Subdivision DA on 27 June 2019, subject to general terms of approval which have been incorporated into the agreed conditions of consent.

Remaining matters in s 4.15(1) of EPA Act

34. In determining the Subdivision DA 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 Subdivision DA.

35. For the purposes of s 4.15(1)(d) of the EPA Act, the Subdivision DA was notified between 6 May and 3 June 2022 and received no submissions.

Dwelling Proceedings

Owner’s consent

36. Lot 65 is owned by the applicant. The Dwelling DA was lodged on behalf of the applicant by its consultant surveyor, acting as its agent (see letter from the applicant to its consultant surveyor – Dwelling Proceedings - Class 1 Application, tab 3).

37. The Amended Dwelling DA also seeks to construct an associated access road and gate on Lot 1. The applicant has confirmed that it is also the registered proprietor of Lot 1.

Wyong Local Environmental Plan 2013 (WLEP)

38. For the reasons set out in [19] above, the WLEP applies to the Amended Dwelling DA as it was lodged on 28 July 2022 and not finally determined before the commencement of the CCLEP on 1 August 2022.

39. Lot 65 and Lot 1 are zoned C3 Environmental Management under the WLEP. I have considered the objectives of the C3 zone (extracted above at [21]). The parties agree that the Amended Dwelling DA achieves the objectives of the C3 zone.

40. Dwelling houses are permissible in the C3 zone, subject to the requirements in cl 4.2B of the WLEP. Clause 4.2B(3) relevantly provides that development must not be granted for the erection of a dwelling house unless the land falls within one of the categories listed. The parties agree that the land the subject of the Amended Dwelling DA falls within cl 4.2B(3)(b) of the WLEP, being a lot “created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement”.

41. Pursuant to cl 16(1)(a) of the (now repealed) Wyong Local Environmental Plan 1991 (WLEP 1991), dwelling houses are permissible on land zoned, amongst others, No 1(a) and 7(a), with the consent of Council if the lot was in existence on the appointed day. “Appointed day” is defined in the WLEP 1991 to mean the day on which the WLEP 1991 takes effect.

42. In respect of Lot 65, being the lot on which the dwelling house is proposed to be located, the parties agree that:

1. Lot 65 was created upon approval of the Plan of Portion 65 in Crown Plan No 87/14 of 16 June 1888;

2. Lot 65 is therefore a lot that was in existence on the “appointed day” for the purposes of cl 16(1)(a) of the WLEP 1991; and

3. Lot 65 was zoned No 1(a) and 7(a) under the WLEP 1991.

43. The effect of the above is that a dwelling house was permissible on (what is now) Lot 65 immediately before the commencement of the WLEP for the purposes of cl 4.2B(3)(b) of the WLEP.

44. However, cl 4.2B(4) of the WLEP provides that development consent must not be granted under subcl (3) unless –

1. no dwelling house has been erected on the land, and

2. if a development application has been made for development for the purpose of a dwelling house on the land – the application has been refused or it was withdrawn before it was determined, and

3. if development consent has been granted in relation to such an application - the consent has been surrendered or it has lapsed.

45. There is an existing consent for the construction of a dwelling on Lot 65 (DA/664/2013 approved 6 November 2013) (2013 Consent). Although the dwelling was not constructed, the parties agree that sufficient works were undertaken such that the 2013 Consent has not lapsed.

46. As noted in [69(2)] below, the applicant gave the respondent written notice on 1 February 2024 that it voluntarily surrendered the 2013 Consent pursuant to s 4.63 of the EPA Act and s 68 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The Council provided written notice to the applicant on 7 February 2024 that the notice of surrender had been effected under s 68(4) of the EPA Regulation. Therefore, cl 4.2B(4) does not prohibit the granting of consent to the Amended Dwelling DA.

47. The land the subject of the Amended Dwelling DA is identified as being located within a “flood planning area” for the purposes of cl 5.21 of the WLEP. Pursuant to cl 5.21(2) of the WLEP, development consent must not be granted to development on land within the flood planning area unless the consent authority is satisfied of certain matters. Further, pursuant to cl 5.21(3), the consent authority must consider certain matters in deciding whether to grant development consent to land to which cl 5.21 applies.

45. In determining the Amended Dwelling DA, I have had regard to the nature of the Amended Dwelling DA, and the fact that the proposed dwelling, access and effluent irrigation area are located in areas not affected by flooding. I am satisfied of the matters listed in cl 5.21(2) and have considered the matters listed in cl 5.21(3) of the WLEP.

46. The land the subject of the Amended Dwelling DA is identified as being within a “drinking water catchment” for the purposes of cl 7.4 of the WLEP. Pursuant to cl 7.4(3) of the WLEP, a consent authority must consider various matters before determining a development application for development on land to which the clause applies. Further, pursuant to cl 7.4(4), development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied of various matters.

47. In determining the Amended Dwelling DA, I have regard to the proposed design of the effluent management system and stormwater management system. I confirm that I have considered the matters listed in cl 7.4(3) and am satisfied of the matters listed in cl 7.4(4) of the WLEP.

48. Pursuant to cl 7.9 of the WLEP, development consent must not be granted to development unless the consent authority is satisfied that any of the listed services that are essential for the development are available or that adequate arrangements have been made to make them available when required. The parties agree that satisfactory arrangements exist for the provision of the following essential services:

1. the supply of water,

2. the supply of electricity,

3. the disposal and management of sewage,

4. stormwater drainage or on-site conservation, and

5. suitable vehicular access.

52. In determining the Amended Dwelling DA, I am satisfied of the matters listed in cl 7.9 of the WLEP.

Rural Fires Act 1997

53. The land the subject of the Amended Dwelling DA is mapped as being “bushfire prone land” containing Category 1 and Category 2 Vegetation in accordance with s 10.3 of the EPA Act.

54. Section 4.14 of the EPA Act relevant provides that development consent cannot be granted for the carrying out of development unless the consent authority:

1. is satisfied that the development conforms to the specifications and requirements of the document entitled Planning for Bush Fire Protection, or

2. has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

55. The parties agree that the Amended Dwelling DA is accompanied by a certificate from a qualified consultant. I have had regard to the Bushfire Assessment Report prepared by Australian Bushfire Consulting Services dated 13 June 2022 (Dwelling Proceedings – Class 1 Application – tab 7) which attaches a “Bush Fire Risk Assessment Certificate” dated 13 June 2022 and am therefore satisfied that the requirements of s 4.14 of the EPA Act have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

56. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Amended Dwelling DA does not include any change to the use of Lots 65 and 1 that would result in concerns with respect to contamination.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

57. Chapter 2 “Vegetation in non-rural areas” and Chapter 4 “Koala habitat protection 2021” of the Conservation SEPP apply to the land the subject of the Amended Dwelling DA. The Amended Dwelling DA seeks consent for the removal of trees, however, a permit or approval under Chapter 2 of the Conservation SEPP is not required for the removal of trees as the application seeks authorisation for the tree removal as part of the development application, being of a kind authorised under s 60O of the Local Land Services Act 2013.

58. In determining the Amended Dwelling DA, I have had regard to the “Flora and Fauna Assessment for part of No 227 Brush Creek Road Cedar Brush Creek” prepared by Enviro Ecology dated 20 October 2023 (Flora and Fauna Assessment) and am satisfied that the provisions of Chapter 2 and Chapter 4 of the Conservation SEPP do not pose an impediment to the approval of the Amended Dwelling DA.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

59. As the Dwelling DA was submitted on the NSW planning portal but not finally determined before 1 October 2023, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) applies to the Amended Dwelling DA (see s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022).

60. In compliance with the relevant requirements under the BASIX SEPP and EPA Regulation, the applicant obtained an updated BASIX certificate (Certificate No 1295219S_03 dated 18 January 2024) prepared by Bonnefin Consulting Pty Ltd.

Biodiversity Conservation Act 2016

61. Section 7.2 of the Biodiversity Conservation Act 2016 (BC Act) relevantly provides that development or an activity is likely to significantly affect threatened species if:

1. it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in s 7.3, or

2. the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impact of the development on biodiversity values, or

3. it is carried out in a declared area of outstanding biodiversity value.

62. Pursuant to s 7.4(1) of the BC Act, proposed development relevantly exceeds the biodiversity offsets scheme threshold if it is development of an extent or kind that the regulations declare to be development that exceeds the threshold.

63. The parties agree that the Amended Dwelling DA will not exceed the threshold for native vegetation clearing, which, pursuant to s 7.2 of the Biodiversity Conservation Regulation 2017, is 1 hectare.

64. Having regard to the Flora and Fauna Assessment, I am satisfied that the development the subject of the Amended Dwelling DA does not exceed the biodiversity offsets scheme threshold and is unlikely to significantly affect threatened species for the purposes of the BC Act.

Remaining matters in s 4.15(1) of EPA Act

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

66. For the purposes of s 4.15(1)(d) of the EPA Act, I note that the Amended Dwelling DA was not notified, as in accordance with Appendix A – Notification Table, at Chapter 1.2 of the Wyong Development Control Plan 2013, the respondent’s assessing officer was of the view that the Dwelling DA, as lodged:

1. complied with the setback, site coverage, floor space ratio and building height requirements, and

2. would not have an undue impact on the amenity of surrounding properties.

Conclusion

67. 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.

68. 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.

Dwelling Proceedings

69. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38 of the EPA Regulation, to the applicant amending its development application so as to rely on the following documentation:

1. Architectural Plans prepared by Mathieson as follows:

Plan No.	Revision	Plan Title	Dated
DA.03	C	Site Plan	4.08.23
DA.04	D	Ground Floor Plan	4.08.23
DA.05	C	Roof Plan	4.08.23
DA.06	E	Elevations	22.12.23
DA.07	D	Sections	4.08.23
DA.08	B	External Finishes	12.12.23
DA.10	B	Cut & Fill Diagrams	12.12.23
DA.12	A	Carport Elevation	4.08.23

2. Civil Plans prepared by Everitt Consulting Engineers as follows:

Plan No.	Revision	Plan Title	Dated
C2.01	B	Overall Plan	21.06.23
C2.02	B	Detail Plan – Sheet 1	21.06.23
C2.03	B	Detail Plan – Sheet 2	21.06.23
C3.01	B	Road Longsection – MC01 CH0.0 TO CH330.0	21.06.23
C3.02	B	Road Longsection – MC01 CH330.0 to 352.13 & MC02	21.06.23
C4.01	B	Typical Road Cross Sections	21.06.23

3. Other Plans prepared by Everitt & Everitt Consulting Surveyors as follows:

Plan No.	Revision	Plan Title	Dated
19474DET	No. 4	Site Plan – Partial Detail Survey – Showing Proposed Dwelling Position (Sheet 1)	11.10.23
19474DET	No. 4	Plan Showing Proposed Effluent Feed Line and Application Areas (Sheet 2)	11.10.23
19474DET	No. 4	Plan Showing Proposed Effluent Feed Line and Application Areas (Sheet 3)	11.10.23
10474DA-COURT	No. 2	Plan Showing Proposed and Approved Dwellings and APZ’s & Trees to be Removed	8.08.23

4. Arboricultural Impact Assessment prepared by Enviro Ecology, dated 11 October 2023;

5. BASIX Certificate No 1295219S_03 dated 18 January 2024;

6. NatHERS Certificate 0009175795-04 dated 18 January 2024;

7. Flora and Fauna Assessment prepared by Enviro Ecology, dated 20 October 2023;

8. Vegetation Management Plan prepared by Enviro Ecology, dated 5 December 2023;

2. The applicant gave the respondent written notice on 1 February 2024 that it voluntarily surrendered development consent DA/664/2013 pursuant to s 4.63 of the EPA Act and s 68 of the EPA Regulation. The Council provided written notice to the applicant on 7 February 2024 that the notice of surrender had been effected under s 68(4) of the EPA Regulation.

3. The parties agree that, although the Dwelling Proceedings were not listed in the s 34AA stream (and were instead listed together with the Subdivision Proceedings), as the Amended Dwelling DA relates to “development for the purposes of a detached single dwelling”, s 34AA of the LEC Act still applies to the Dwelling Proceedings, such that s 8.15(3) of the EPA Act (which requires an order for costs in relation to an amended application) does not apply to the Amended Dwelling DA.

Orders

Proceedings 2023/21216

70. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA/1020/2022 for a boundary adjustment between lots 33 and 65 in deposited plan 755261 is determined by the grant of consent subject to conditions set out in Annexure A.

Proceedings 2023/21235

71. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/1972/2022 is determined by the grant of consent subject to conditions set out in Annexure B.

3. The applicant is to file the amended development application as approved by the respondent and set out in condition 1.1 of Annexure B within seven (7) days of the date of this order.

N Targett

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 22 November 2024