Comsult Pty Limited ATF McAnulty Family Trust v Shoalhaven City Council

[2024] NSWLEC 1254

Land and Environment Court

New South Wales

Medium Neutral Citation:

Comsult Pty Limited ATF McAnulty Family Trust v Shoalhaven City Council [2024] NSWLEC 1254

Hearing dates:

Conciliation conference held on 28 March 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay $4000 to the Respondent, being the agreed costs of the consent authority thrown away as a result of the amendment of the application, within 21 days of the date these orders are made

(2) The appeal is upheld.

(3) Development Application No. DA23/1352 lodged with the Respondent on 12 May 2023 (DA), for the construction of multi dwelling housing – three (3) dwellings on land known as 23 Parker Crescent, Berry, also known as Lot 331 DP 1226462, is approved subject to conditions set out in

'Annexure A'.

Catchwords:

APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Shoalhaven Local Environmental Plan 2014, cll 4.1A, 4.3, 7.2, 7.11

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38

Category:

Principal judgment

Parties:

Comsult Pty Limited ATF McAnulty Family Trust (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
A Brickhill (Solicitor) (Respondent)

Solicitors:
Foundation Law
Bradley Allen Love

File Number(s):

2023/365718

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA23/1352) for the construction of multi dwelling housing comprising 3 two-storey dwellings at 23 Parker Crescent, Berry. The development application was refused by the respondent on 8 August 2023. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 March 2024, and continued on various occasions through Online Court. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final agreement was filed on 9 May 2024.

4. The agreement was reached following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include increased clearance distance from the Shoalhaven Water Sewer Manhole infrastructure, amended roof design of Unit 1 to show a hip pitching from the front façade, relocation of garage for Unit 1 to improve streetscape appearance, updated swept path analyses, the addition of a privacy screen for the Unit 1 courtyard, and the introduction of privacy measures for the Unit 3 private open space. The amendments reduce the impact of the proposed development and improve privacy.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by Agreed Submissions on Jurisdictional Matters, which sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Agreed Submissions, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The proposed development is for the purpose of multi dwelling housing, which is a permissible use within the R1 General Residential zone in which the site is located, pursuant to the Shoalhaven Local Environmental Plan 2014 (SLEP).

• The proposed development complies with the development standards for height and for the minimum lot size for multi dwelling housing development, pursuant to cll 4.3 and 4.1A of the SLEP.

• The development application includes earthworks for the construction of the dwellings. Based on the extent of excavation required and the proposed conditions of consent, I have considered the matters set out in cl 7.2(3) of the SLEP.

• I am satisfied that the essential services required by cl 7.11 of the SLEP are available for the proposed development.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 7 May 2024.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The site is part of a large residential subdivision, known as ‘Huntingdale Estate’, and at the time of the approval of the subdivision, the investigations undertaken satisfied the Council that the site was not contaminated. No commercial, agricultural or industrial activity has taken place on the site that would give rise to any apprehension of possible contamination.

• The proposed development could affect an underground electricity power line, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Endeavour Energy was notified of the development application and their comments are required to be complied with by condition 5 of the agreed conditions .

• The development application was notified from 17 May 2023 and 2 June 2023, and 64 submissions were received during that period. In addition, four objectors spoke at the commencement of the conciliation conference. I have considered the issues raised in in written submissions and by the objectors who spoke.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court notes

1. the Respondent has agreed, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No: DA23/1352 to rely upon the amended plans and documents identified in Condition 1 of 'Annexure A'.

10. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay $4000 to the Respondent, being the agreed costs of the consent authority thrown away as a result of the amendment of the application, within 21 days of the date these orders are made.

2. The appeal is upheld.

3. Development Application No. DA23/1352 lodged with the Respondent on 12 May 2023 (DA), for the construction of multi dwelling housing – three (3) dwellings on land known as 23 Parker Crescent, Berry, also known as Lot 331 DP 1226462, is approved subject to conditions set out in 'Annexure A'.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 16 May 2024