Chick and Lim v Shoalhaven City Council

[2022] NSWLEC 1706

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chick and Lim v Shoalhaven City Council [2022] NSWLEC 1706

Hearing dates:

Conciliation conference held on 15 November 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA22/1421 seeking alterations, additions and change of use of an existing barn/shed to tourist and visitor accommodation on Lot 4 DP 826805 also known as 80 Boundary Road, Broughton NSW 2535, is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – Additions and alterations to an existing barn – 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, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Shoalhaven Local Environmental Plan 2014, cl 2.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4

Texts Cited:

Shoalhaven Development Control Plan 2014

Category:

Principal judgment

Parties:

Andrew Jeffry Chick (First Applicant)
Rebecca Fui Yee Lim (Second Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
O Yeatman (Solicitor) ((Applicants)
S Nielson (Solicitor) (Respondent)

Solicitors:
RMB Lawyers (Applicants)
Shoalhaven City Council (Respondent)

File Number(s):

2022/219763

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA22/1421 (the DA) by Shoalhaven City Council (hereafter the Council), which as amended seeks alterations and additions to an existing barn (also referred to as a shed) for the use of tourist and visitor accommodation, with landscaping on Lot 4 DP 826805, also known as 80 Boundary Road, Broughton (the site).

Background

2. The DA was submitted to Council on 14 April 2022. The original DA was notified to residents, with one submission received in support.

3. The original DA was referred to NSW Rural Fire Service (RFS), as a relevant authority, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

5. 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).

6. 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 via Microsoft Teams.

7. Based on the amended application 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. The agreed position of the parties is for the Court to grant consent to the amended application, DA22/1421, with conditions.

8. 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, and other relevant jurisdictional requirements, to grant consent to DA22/1421, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

9. The site is identified as being on ‘bushfire prone’ land. Satisfaction of s 4.14 of the EPA Act is therefore a requirement to grant consent on the site. The amended DA is supported by a Bushfire Hazard Assessment Report, dated 14 March 2022, prepared by BPAD and together with the agreed conditions of consent specify the required bushfire protection measures for the existing barn. The Rural Fire Service (RFS) have issued a Bushfire Safety Authority, pursuant to s 100B of the Rural Fires Act 1997 and General Terms of Approval (GTA’s), which are adopted in the agreed conditions of consent. I am satisfied that the relevant provisions of the Rural Fires Act 1997 and s 4.14 of the EPA are addressed.

10. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. Additional to the above jurisdictional considerations, the following jurisdictional requirements have been assessed by the Court:

1. Shoalhaven Local Environmental Plan 2014 (SLEP):

1. Pursuant to cl 2.3 of the SLEP, the site is located within land zoned as RU1 Primary Production. The proposed alterations and additions to the existing barn, including landscaping, as described to the Court, is permissible with consent. The amended DA with agreed conditions of consent sufficiently address all the relevant objectives, aims, standards and requirements of the SLEP.

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

1. The site is subject to the provisions of the SEPP Biodiversity, specifically relating to koala habitat protection, described in Ch 3. The amended application, with agreed conditions of consent is confirmed as being consistent with the relevant provisions of the SEPP Biodiversity, specifically Ch 3.

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

1. Based on the historical use of the site, with no contaminating activities, the Court is satisfied that the site is suitable for its intended development purpose, as supported by agreed conditions of consent. Therefore, the relevant requirements of Ch 4 of the SEPP Resilience are addressed.

4. Shoalhaven Development Control Plan 2014 (SDCP):

1. The original application was publicly notified in accordance with the SDCP, with one submission received in support. The Statement of Environmental Effects that supports the DA, explains that the relevant requirements of the SDCP are generally complied with. This is supported by the amended plans and documents of the amended DA, and agreed conditions of consent.

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

12. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from all landowners for the proposed development as described in the agreed conditions of consent.

Grant of consent

13. 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.

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

15. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that application DA22/1421 can be granted consent, as it satisfies the relevant requirements of the EPA Act.

16. 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.

17. The Court notes that:

1. Shoalhaven City 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 DA22/1421.

2. The amended application was lodged on the NSW Planning Portal on 6 December 2022.

3. The amended application was filed with the Court.

18. The Court orders that:

1. The appeal is upheld.

2. Development Application DA22/1421 seeking alterations, additions and change of use of an existing barn/shed to tourist and visitor accommodation on Lot 4 DP 826805 also known as 80 Boundary Road, Broughton NSW 2535, is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

Sarah Bish

Commissioner of the Court

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