Elanora Breeze Pty Ltd v Tweed Shire Council

[2023] NSWLEC 1338

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elanora Breeze Pty Ltd v Tweed Shire Council [2023] NSWLEC 1338

Hearing dates:

Conciliation conference on 16 June 2023

Date of orders:

30 June 2023

Decision date:

30 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application DA21/0582, as amended, for the demolition of existing buildings, subdivision of 2 lots into 4 lots, construction of 4 dual occupancies and strata subdivision on land legally described as Lot 5 DP 23576 and Lot 6 DP 23576, being 7 and 9 Elanora Avenue, Pottsville, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – appeal against the conditions of consent imposed on the development consent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16

Environmental Planning and Assessment Regulation 2000, cll 55, 55AA, 121B

Environmental Planning and Assessment Regulation 2021, Sch 6 s 3

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021 s 2.10, 4.6

Tweed Local Environmental Plan 2014 cll 7.1, 7.2

Category:

Principal judgment

Parties:

Elanora Breeze Pty Ltd (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:
M Young (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/371825

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against certain conditions of consent to Development Consent No DA 21/0582 granted by Tweed Shire Council (the Council) on 6 March 2023 for the demolition of existing buildings, subdivision of 2 lots into 4 lots, construction of 4 dual occupancies and strata subdivision (the proposal), at 7 and 9 Elanora Avenue, Pottsville (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 June 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

5. The Environmental Planning and Assessment Regulation 2000 (2000 Regulation) continues to apply to the application, because the application was lodged on 21 July 2021 and not yet determined on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to subs 3(2) of Sch 6 to the Environmental Planning and Assessment Regulation 2021, a requirement to use the NSW Planning Portal under the 2000 Regulation, cll 55(1), 55AA(2)(d) or 121B(1) does not apply if the development application is subject to proceedings in the Court.

6. The site is zoned R3 Medium Density Residential pursuant to Tweed Local Environmental Plan 2014 (LEP 2014). The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

7. The proposal is permissible development with consent in the R3 zone.

8. I accept the Council’s submission that the site is mapped as Class 5 on the Acid Sulfate Soils map, pursuant to cl 7.1 of LEP 2014, and as only a shallow amount of excavation is proposed, no further assessment is required.

9. I accept the Council’s submission that the earthworks proposed are minor and the matters under cl 7.2 of LEP 2014 are satisfied.

10. The site is within the coastal environment area pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP (Resilience and Hazards)), s 2.10. I accept the Council’s submission and the evidence in the Statement of Environmental Effects that the matters under s 2.10(2) of SEPP (Resilience and Hazards) are satisfied. I am satisfied, pursuant to the considerations under Pt 2.2 of SEPP (Resilience and Hazards), that the proposal does not increase the risk of coastal hazards, because the built form includes a generous rear setback to the adjoining area mapped littoral rainforest.

11. I accept the Council’s submission that the site has been used for residential purposes for some time and is suitable for the proposal, pursuant to s 4.6 of SEPP (Resilience and Hazards).

Conclusion

12. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 16 June 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

13. The orders of the Court are:

1. The appeal is upheld.

2. Development Application DA21/0582, as amended, for the demolition of existing buildings, subdivision of 2 lots into 4 lots, construction of 4 dual occupancies and strata subdivision on land legally described as Lot 5 DP 23576 and Lot 6 DP 23576, being 7 and 9 Elanora Avenue, Pottsville, is approved, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 30 June 2023