ELK Designs Newcastle Pty Ltd v Wingecarribee Shire Council

[2023] NSWLEC 1088

Land and Environment Court

New South Wales

Medium Neutral Citation:

ELK Designs Newcastle Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1088

Hearing dates:

Conciliation conference on 05 December 2022

Date of orders:

01 March 2023

Decision date:

01 March 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the Development Application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount as agreed or assessed.
(2) The Appeal is upheld.
(3) Development Application No. DA-22/0548 for the demolition of the existing dwelling and ancillary structures and construction of a multi-dwelling housing development consisting of eight (8) dwellings at 16 Ascot Road, Bowral, is determined by way of granting development consent, subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling development - amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.64
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Wingecarribee Local Environmental Plan 2010, cll 2.7, 7.3.

Category:

Principal judgment

Parties:

ELK Designs Newcastle Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor)(Applicant)
T Hislop (Solicitor)(Respondent)

Solicitors:

Hartley Solicitors (Applicant)
Maddocks (Respondent)

File Number(s):

2022/274542

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by ELK Designs Newcastle Pty Ltd (the Applicant) against the refusal of Development Application No. DA-22/0548 by Wingecarribee Shire Council (the Respondent) on 4 August 2022.

2. The Development Application seeks consent for the demolition of existing structures and the construction of a multi dwelling housing development at 16 Ascot Road, Bowral. The site is legally identified as Lot 14, Section C, DP 8185.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was initially held on 5 December 2022.

4. At the conciliation conference, the parties reached an in principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The conciliation process was adjourned to allow the parties to finalise agreements. The proposed decision was to grant Development Consent to the Development Application, subject to agreed outcomes and agreed conditions.

5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The applicant lodged the amended application on the NSW Planning portal and these amendments were accepted by Council. The amendments, which were made in response to concerns raised by the Respondent and objectors to the proposal, result in fewer environmental impacts from the proposed development.

6. The Court notes, in respect to the amended plans, that:

1. The Applicant has amended the Development Application with the agreement of the Respondent. The amendments have been made in response to the concerns raised by the Respondent and objectors and result in a lesser environmental impact from the proposed development.

2. The Amended Plans were lodged on the NSW Planning Portal on 7 February 2023.

3. The Amended Plans were filed with the Court on 13 February 2023.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

9. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one 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). In reaching that state of satisfaction, I note the following:

1. The Site is zoned R3 - Medium Density Residential (Zone) under the Wingecarribee Local Environmental Plan 2010 (WLEP 2010) and development for the purposes of medium density housing is permissible, with development consent, in the Zone. As required by the WLEP 2010, regard has been given to the objectives of the zone in determining the Development Application.

2. Clause 2.7 of WLEP provides that demolition is permissible with consent. Demolition is proposed as part of the Development Application and has been considered. Appropriate conditions have been included in the agreed conditions in Annexure A.

3. Clause 7.3 of the WLEP is applicable as earthworks are proposed under the Development Application. The agreed conditions of consent include conditions that appropriately regulate the proposed excavation and these have been included in the Development Consent (Annexure A). The matters listed under clause 7.3(3) of the WLEP, with respect to earthworks, have been considered.

4. The Development Application was placed on exhibition between 16 November and 21 December 2021 in accordance with the Respondent’s Notification of Development Proposals Policy. Six (6) submissions were received and considered by the parties.

5. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

6. Consideration has been given to the relevant matters in the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). An assessment of the effect of the proposed development on the Sydney drinking water catchment against the Neutral or Beneficial Effect criteria is provided at page 6 of the Water Cycle Management Study prepared by Novati Consulting Engineers dated 1 July 2021.

7. WaterNSW, who is the Regulatory Authority for the Sydney Drinking Water Catchment, has been consulted about the Amended Plans and provided advice in which it concurred with Council granting Development Consent to the Development Application subject to conditions. These conditions are reflected in the conditions attached to Appendix A to this judgment. As a result, the requirement for concurrence under s 6.64 of the Biodiversity and Conservation SEPP has been obtained.

8. Council prepared a Water and Sewer Modelling report in April 2022. This report indicates that there would be negligible impact on the performance of its water supply network as a result of the proposed development. The parties agree that the Amended Development Application would not impact upon the performance of Council’s water supply network.

9. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties considered material from the Applicant as to whether the land is contaminated in material prepared by Adam Piper (dated 16 December 2022). The historical use of the site for low density rural/residential purposes indicates that contamination is unlikely. The requirements under clause 4.6 of the Resilience and Hazards SEPP have been addressed, and the site is suitable for its proposed use for residential purposes.

10. 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’ agreement.

11. 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.

Orders

12. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the Development Application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount as agreed or assessed.

2. The Appeal is upheld.

3. Development Application No. DA-22/0548 for the demolition of the existing dwelling and ancillary structures and construction of a multi-dwelling housing development consisting of eight (8) dwellings at 16 Ascot Road, Bowral, is determined by way of granting development consent, subject to the conditions set out in Annexure “A” to this agreement.

Stuart Harding

Acting Commissioner of the Court

Annexure A (696845, pdf)

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Decision last updated: 01 March 2023