Djuric v Wingecarribee Shire Council

[2023] NSWLEC 1634

Land and Environment Court

New South Wales

Medium Neutral Citation:

Djuric v Wingecarribee Shire Council [2023] NSWLEC 1634

Hearing dates:

Conciliation conference on 28 September 2023 final submissions 17 October 2023

Date of orders:

26 October 2023

Decision date:

26 October 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that were thrown away as a result of the amendment of the application for development consent, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application number DA22/1263 for a mixed-use development consisting of commercial uses, tourist and visitor accommodation, and residential apartments including 12 tourist and visitor rooms (3 x 2 bed rooms and 9 x single bed rooms) and residential apartments comprising 10 dwellings (6 x 2 bedroom and 4 x 3 bedroom units) above 2 levels of basement carparking located at 35 - 37 Station Street, Bowral subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 8, ss 8.8, 8.9

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

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, Pt 2.3, Div 15, Subdiv 2, 2.98, 2.99, 2.100, Div 17, 2.119, 2.120, 2.122

Wingecarribee Local Environmental Plan 2010, cl 5.10

Category:

Principal judgment

Parties:

Sibin Djuric (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
A Chryssochoides (Solicitor) (Applicant)
B Dyer (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/168977

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following the deemed refusal by Wingecarribee Shire Council (Council) of a development application made by the applicant identified as DA22/1263 (DA). The DA, as amended, is for a mixed use development, consisting of commercial uses and tourist and visitor accommodation comprising 12 units (three x two bedroom units and nine x one bedroom units) and 10 residential apartments (six x two bedroom apartments and four x three bedroom apartments) and associated development on Lots 33 and 34 DP1230381, also known as 35-37 Station Street, Bowral (site).

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 September 2023, and at which I presided.

Agreement reached

3. Prior to the conciliation conference, and after the applicant had prepared a suite of amending plans and other supportive documentation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the amended DA, subject to agreed conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

Jurisdiction

5. There are jurisdictional preconditions that must be satisfied before this function can be exercised. The parties’ identified various such preconditions in an agreed jurisdictional statement which accompanied the s 34 agreement. Having regard to the parties agreed jurisdictional statement and my own considerations and conclusions, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed by the parties. In that regard, I note and make relevant jurisdictional findings in relation to the following matters.

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 provides that a consent authority must not consent to the carrying out of any development on land unless:

(a)    it has considered whether the land is contaminated, and

(b)    if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)    if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

7. Due consideration has been given to these requirements. Here I note the Detailed Site Investigation (Contamination) Report, Revision 1, prepared by Douglas Partners dated May 2023 (DSI) (filed with the Court on 19 May 2023 Tab 9 of Exhibit AC-1). It is noted that the DSI concluded that the site has a low potential for gross contamination and that there were no concerns regarding use of the site for residential purposes. The DSI sets out a number of recommendations which have been incorporated into the parties agreed conditions (eg Conditions 31, 69 and 70). The relevant requirements are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. The DA was lodged before the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022 on 21 November 2022 and therefore Ch 8 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), as at 20 November 2022, applies. Relevantly, the site is located in the Sydney Drinking Water Catchment for the purposes of Ch 8.

9. Under s 8.8, a consent authority must not grant development consent on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. In this instance, under s 8.9, the concurrence of WaterNSW is required before the grant of consent. By correspondence dated 3 August 2023 concurrence was granted by WaterNSW, subject to a series of nominated “concurrence conditions” which have been included in the parties’ agreed conditions. I note that in its letter of concurrence, WaterNSW advised of its finding that the development can achieve a neutral or beneficial effect on stormwater quality subject to the nominated conditions and their implementation. In all of the circumstances I am satisfied with respect to ss 8.8 and 8.9.

State Environmental Planning Policy (Transport and Infrastructure) 2021

10. The site is located directly adjacent to a railway corridor and therefore the controls contained within Ch 2, Pt 2.3, Div 15 apply. Specifically, Subdiv 2 sets out controls for development in or adjacent to rail corridors and interim rail corridors. The following commentary and findings are relevant:

• Pursuant to ss 2.98 and 2.99, Council advises it referred the DA to Australian Rail Track Corporation (ARTC) and the response from the ARTC outlined a number of considerations and proposed conditions to be imposed on the consent. These conditions are included in the parties’ agreed conditions at Condition 71.

• Pursuant to s 2.100, and managing for rail noise, I note the parties’ advice that agreed conditions require appropriate measures to be taken to ensure that the relevant LAeq levels are not exceeded for the proposed residential accommodation (eg Conditions 26 and 89).

11. The site is also adjacent to a classified road and therefore certain provisions from Ch 2, Pt 2.3, Div 17 apply. The following commentary and findings are relevant:

• In regard to s 2.119, the parties have taken me to the Traffic Impact Assessment report prepared by McLaren Traffic Engineering Consultants (Ex AC-1 Tab 7) which for me demonstrates that the requirements of subss 2.119(2)(a) and (b) are satisfied. While I note that there is no direct reference to subs 2.119(2)(b)(ii) I have made my own conclusions of satisfaction in relation to the whether the operation of the classified road would be adversely affected by smoke or dust based on the traffic volumes indicated in this report.

• In regard to s 2.120, and managing for road noise, I note the parties' advice that agreed conditions require appropriate measures to be taken to ensure that the relevant LAeq levels are not exceeded for the proposed residential accommodation (eg Conditions 26 and 89).

• In regard to s 2.122 and traffic generating development provisions, I have considered the relevant feedback from TfNSW which essentially indicated satisfaction with Council’s traffic expert’s own advice, which in this instance is supportive.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

12. In regard to State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) and cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the Applicant has provided the required statement by the proposal’s qualified designer addressing how the design quality related principles and objectives of Parts 3 and 4 of the Apartment Design Guide (ADG) have been achieved (Applicant’s Without Prejudice Conciliation Conference Bundle Tab 6). I have considered the design quality of the development when evaluated in accordance with the design quality principles, and the ADG. Mindful of the supportive position of urban design experts appointed in relation to this matter (report filed 15 August 2023), I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the relevant ADG.

Wingecarribee Local Environmental Plan 2010

13. The site is zoned E1 – Local Centre under the Wingecarribee Local Environmental Plan 2010 (WLEP). There is no dispute that the proposal is permitted with consent in that zone. I have had regard to the zone objectives.

14. I note the amended proposal does not breach any relevant development standard.

15. In relation to cl 5.10 and heritage conservation, I note the Heritage Impact Statement (HIS) (Ex AC-1 Tab 15). The HIS identified the site as being located within 31-37 Station Street, a listed heritage item of local significance. Prior to the parties coming to agreement, a joint report was prepared by heritage experts in regard to the proceedings (filed 8 August 2023). This joint report indicated the experts were satisfied with the proposal subject to certain provisos which have been included in the agreed conditions. I have given consideration to the effect of the proposed development on the heritage significance of the item concerned, and find the position adopted by the parties appropriate in the circumstances.

Remaining considerations under section 4.15(1) of the Environmental Planning and Assessment Act 1979

16. The parties advise the proposal was notified in accordance with requirements. There were a number of objections to the original proposal (Council’s Amended Statement of Facts and Contentions filed 19 June 2023 par 22). During the conciliation conference, the parties took me through how the amended application had responded relevantly to these objections. I note the advice of the parties that the amended proposal had also been notified and only one submission was received which was supportive. Objecting submissions have been taken into consideration in accordance with the requirement of s 4.15(1)(d) of the EPA Act.

17. I have given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of s 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

18. Based on the above findings, the parties’ decision is one which can be made in the proper exercise of the Court’s power. As required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

19. 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 DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notation

20. I note that Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending development application number DA22/1263 to rely on the following amended plans and additional information:

Plan Title / Supporting Document	Reference / Version	Prepared By	Dated
Site Plan	DA.100, Revision E	Architectural Projects	26 September 2023
Calculation Plan	DA.101, Revision E	Architectural Projects	26 September 2023
Basement 1	DA.102, Revision E	Architectural Projects	26 September 2023
Basement 2	DA.103, Revision E	Architectural Projects	26 September 2023
Lower Ground Floor	DA.104, Revision E	Architectural Projects	26 September 2023
Ground Floor	DA.105, Revision E	Architectural Projects	26 September 2023
First Floor	DA.106, Revision E	Architectural Projects	26 September 2023
Second Floor	DA.107, Revision E	Architectural Projects	26 September 2023
Third Floor Plan	DA.108, Revision E	Architectural Projects	26 September 2023
Roof Plan	DA.109, Revision E	Architectural Projects	26 September 2023
Elevations 1	DA.201, Revision E	Architectural Projects	26 September 2023
Elevations 2	DA.202, Revision E	Architectural Projects	26 September 2023
Elevations 3	DA.203, Revision E	Architectural Projects	26 September 2023
Streetscape Elevations	DA.204, Revision E	Architectural Projects	26 September 2023
Materials Board	DA.205, Revision E	Architectural Projects	26 September 2023
East Elevations	DA.206 Revision E	Architectural Projects	26 September 2023
Section 1	DA.301, Revision E	Architectural Projects	26 September 2023
Section 2	DA.302, Revision E	Architectural Projects	26 September 2023
Section 3	DA.303, Revision E	Architectural Projects	26 September 2023
Shadow Diagrams 9am	500, Revision E	Architectural Projects	26 September 2023
Shadow Diagrams 11am	501, Revision E	Architectural Projects	26 September 2023
Shadow Diagrams 12pm	502, Revision E	Architectural Projects	26 September 2023
Shadow Diagrams 1pm	503, Revision E	Architectural Projects	26 September 2023
Shadow Diagrams 2pm	504, Revision E	Architectural Projects	26 September 2023
Shadow Diagrams 3pm	505, Revision E	Architectural Projects	26 September 2023
Views	DA.801, Revision E	Architectural Projects	26 September 2023
Views	DA.802, Revision E	Architectural Projects	26 September 2023
Views	DA.803, Revision E	Architectural Projects	26 September 2023
Typical Hotel Layout Detail	DA.901, Revision E	Architectural Projects	26 September 2023
Typical Unit Type E, F and G Detail	DA.902, Revision E	Architectural Projects	26 September 2023
Landscape Plans	Revision C	Ray Fuggle Architects	29 August 2023
Stormwater Plans	Revision A, Drawings No.SW01, SW02, SW03 and SW04	Vladimir Stojnio	28 March 2023
Basement construction and water extraction information	N/A	Vladimir Stojnio	9 September 2023
Sewer Modelling Report	Final	Urbanwater Solutions	September 2023
Statement of Environmental Effects	N/A	Lee Environmental Planning	May 2023
Design Verification Statement	N/A	Architectural Projects	May 2023
SEPP65 Report &Checklist	V.02	Architectural Projects	September 2023
Waste Management Plan	21NL151-WMP4	Loka Consulting Engineers	27 March 2023
Acoustic Logic Report	N.A	Acoustic Logic	27 March 2023
Acoustic Logic Letter	Natural Ventilation Review	Acoustic Logic	28 August 2023
BCA 2019 Section J DTS Report	AE4196	AENEC	30 September 2023
NatHERS Certificates	N/A	AENEC	4 October 2023
BASIX Certificate No. 1255619M	N/A	AENEC	27 September 2023
Survey Plan showing easements	Rev. A	D&C Surveying Pty Ltd	18 September 2020
3D Wireframe Renders	A	Architectural Projects	1 September 2023
Detailed Site Investigation Report (Contamination)	N/A	Douglas Partners	May 2023

Orders

21. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that were thrown away as a result of the amendment of the application for development consent, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application number DA22/1263 for a mixed-use development consisting of commercial uses, tourist and visitor accommodation, and residential apartments including 12 tourist and visitor rooms (3 x 2 bed rooms and 9 x single bed rooms) and residential apartments comprising 10 dwellings (6 x 2 bedroom and 4 x 3 bedroom units) above 2 levels of basement carparking located at 35 - 37 Station Street, Bowral subject to the conditions in Annexure A.

P Walsh

Commissioner of the Court

168977.22 (Annexure A)

**********

Decision last updated: 26 October 2023