Charles David Pty Ltd v Upper Hunter Shire Council

[2022] NSWLEC 1701

Land and Environment Court

New South Wales

Medium Neutral Citation:

Charles David Pty Ltd v Upper Hunter Shire Council [2022] NSWLEC 1701

Hearing dates:

Conciliation conference held on 8 December 2022

Date of orders:

22 December 2022

Decision date:

22 December 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application 163/2017, as amended, for a Torrens title 377 lot residential subdivision and associated works on Lot 2 DP 1169320, known as 150 Gundy Road, and part of Lot 2 DP 1237000, Scone is determined by the grant of consent, subject to the conditions in ‘Annexure A’.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – dryland salinity and groundwater management – lot design and landscaping relevant to site constraints - conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.47, 8.3, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environment Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Upper Hunter Local Environmental Plan 2013, cl 2.3

Texts Cited:

Upper Hunter Development Control Plan 2015

Category:

Principal judgment

Parties:

Charles David Pty Ltd (Applicant)
Upper Hunter Shire Council (Respondent)

Representation:

Counsel:
M Harker (Applicant)
A Pickup (Solicitor)(Respondent)

Solicitors:
Morgan English Commercial Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2021/273263

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application DA 163/2017 (the DA) by the Upper Hunter Shire Council (hereafter the Council) which, as amended, seeks a Torrens title subdivision for 377 lots, with associated essential service infrastructure, public open space and landscaping on Lot 2 in Deposited Plan (DP) 1169320, also known as 150 Gundy Road, Scone and part of Lot 2 DP 1237000 (hereafter together the site).

Background

2. The DA was lodged with Council on 22 November 2017. The original DA was notified to residents, with 2018 submissions received. The DA was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. Following referral and consideration by the Hunter and Central Coast Regional Planning Panel (the Panel), the DA was refused on 30 September 2020. After a request for review was submitted, pursuant to s 8.3 of the EPA Act, although remains undetermined, the applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

5. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held in person. It is noted that I attended a site view for a previous conciliation conference relating to this appeal, held on 1 August 2022, and which was terminated, pursuant to s 34(4) of the LEC Act.

6. Based on the amended DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties advise that the contentions of Council have been considered and are resolved, and resident objections have been considered. With concurrence of the Panel, the agreed position of the parties is for the Court to grant consent to the amended Development Application (DA 163/2017), with conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, to determine the grant consent to DA 163/2017, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

8. The site is partially mapped as bushfire prone land. The NSW Rural Fire Service, as the relevant Bush Fire Safety Authority, pursuant to s 100B of the Rural Fires Act 1997, has assessed the DA and issued General Terms of Approval (GTA’s), which are incorporated into the agreed conditions of consent. I am satisfied the requirements of the s 4.14 of the EPA Act are addressed.

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically assessed and are addressed:

1. Upper Hunter Local Environmental Plan 2013 (UHLEP):

1. The majority of the site is located within land zoned as R1 General Residential and part is also zoned RU1 Primary Production, pursuant to cl 2.3 of the UHLEP. The proposed subdivision, open space with landscaping and associated civil works, as described to the Court, are permissible with consent in the respective zones. The amended DA is supported by relevant documents, together with agreed conditions of consent which sufficiently address all the relevant objectives, aims, standards and requirements of the UHLEP.

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is identified as having potential koala habitat, therefore subject to the provisions of the SEPP Biodiversity. The amended DA is supported by a flora and fauna assessment that does not identify the site as having ‘core koala habitat’, which together with agreed conditions of consent satisfies the relevant provisions of the SEPP Biodiversity.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to p[provisions of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the site is suitable, and the applicant has provided sufficient information, including a Stage 1 Preliminary Site Investigation, which together with the agreed conditions of consent, address the requirements of s 4.6 of the SEPP Resilience.

4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site has frontage to a classified road, Gundy Road, therefore relevant provisions of SEPP Infrastructure apply, pursuant to s 2.119. The amended DA was referred to Transport for NSW, with no issues raised, and is supported by traffic and noise studies that assess no adverse impacts.

5. Upper Hunter Development Control Plan 2015 (UHDCP):

1. The original and amended DA was publicly notified in accordance with the UHDCP, with submissions received considered by Council in reaching this agreement. The relevant requirements of the UHDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and described in the agreed conditions of consent.

10. The agreed conditions of this consent adopt the GTA’s as provided by relevant authorities, pursuant to s 4.47 of the EPA Act.

11. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from all landowners relevant to the amended DA.

Grant of consent

12. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

13. The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

14. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA 163/2017 should be granted consent, as it satisfies the relevant requirements of the EPA Act.

15. 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.

16. The Court notes that:

1. Upper Hunter Shire Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA 163/2017.

2. The amended application was lodged on the NSW Planning Portal on 7 December 2022.

3. The amended application was subsequently filed with the Court is consistent with the supporting documents uploaded to the NSW Planning Portal.

17. The Court orders that:

1. The appeal is upheld.

2. Development Application 163/2017, as amended, for a Torrens title 377 lot residential subdivision and associated works on Lot 2 DP 1169320, known as 150 Gundy Road, and part of Lot 2 DP 1237000, Scone is determined by the grant of consent, subject to the conditions in ‘Annexure A’.

Sarah Bish

Commissioner of the Court

**********

Annexure A 

Decision last updated: 22 December 2022