Eisenschmitt Pty Ltd v Wingecarribee Shire Council

[2022] NSWLEC 1136

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eisenschmitt Pty Ltd v Wingecarribee Shire Council [2022] NSWLEC 1136

Hearing dates:

Conciliation conference held on 9 March 2021

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

1) The appeal is upheld.

2) Development Consent is granted to DA/21/0992 for the demolition of existing structures and construction of a multi dwelling housing development comprising 9 townhouse dwellings at 3 Brewster Street, Mittagong, subject to conditions contained in Annexure ‘A.

Catchwords:

DEVELOPMENT APPLICATION – residential dwelling construction – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Environmental Planning and Assessment Regulation 2021, Sch 6

Land and Environment Court Act 1979, s 34

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

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Wingecarribee Local Environmental Plan 2010

Texts Cited:

Mittagong Township Development Control Plan 2010

Category:

Principal judgment

Parties:

Eisenschmitt Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
M Sonter (applicant)
J Corradini-Bird (Respondent)

Solicitors:

File Number(s):

2021/135052

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 21/0992 by the Wingecarribee Shire Council (hereafter the Council) which, as amended, seeks demolition of existing structures and construction of a multi-dwelling development of nine (9) dwellings, with associated drainage/earth/civil works on Lot 272 DP 814044, also known as 3 Brewster Street, Mittagong (together the site).

Background

2. The DA was submitted to Council on 11 December 2020, and after notification, made consistent with the relevant planning controls, eight submissions in objection were received during the notification period.

3. After internal assessment, the DA was refused by Council on 26 March 2021.

4. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view at the request of the parties, and which was held by MS Teams.

6. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). It is noted that the EPA Reg was repealed on 1 March 2021, however, pursuant to the savings provision in Sch 6 of the Environmental Planning and Assessment Regulation 2021, the previous regulations are required to be assessed for this DA.

7. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 21/0992, with conditions.

8. Pursuant to s 34(3) of the Court 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 s 4.15, to grant consent to DA 21/0992, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

9. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed by the DA.

10. 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 addressed by the parties the Court:

1. Wingecarribee Local Environmental Plan 2010 (WLEP):

1. Pursuant to the WLEP, the proposed residential development is situated over land zoned R3 Medium Density Residential. The proposed development as described to the Court is permissible with consent. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the WLEP.

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

1. The site is mapped on the ‘Koala Application Map’. The parties agree that the amended DA satisfactorily considers SEPP Biodiversity.

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

1. Pursuant to SEPP Resilience, the site must be deemed suitable or can be made suitable for the proposed use, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is advised that the site has historically been used for residential purposes, and together with the agreed conditions of consent, address the relevant requirements of Chapter 4 of SEPP Resilience.

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

1. A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended DA.

5. Mittagong Township Development Control Plan 2010 (DCP):

1. The relevant requirements of the DCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The original proposed development was publicly notified in accordance with the DCP, and eight submissions were received. The issues raised by residents have been considered by the parties in reaching agreement.

Grant of consent

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

12. The Council has undertaken the appropriate merit assessment of the proposed development and considered objector submissions.

13. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 21/0992 can be granted, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

14. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

15. The Court notes that:

1. Wingecarribee Shire Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the Development Application DA/21/0992.

2. The amended development application documents listed above were lodged on the NSW planning portal on 9 March 2022.

3. The amended development application was filed with the Court on 9 March 2022.

16. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA/21/0992 for the demolition of existing structures and construction of a multi dwelling housing development comprising 9 townhouse dwellings at 3 Brewster Street, Mittagong, subject to conditions contained in Annexure ‘A.

…………………………

Sarah Bish

Commissioner of the Court

(Annexure A) (808305, pdf)

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Decision last updated: 23 March 2022