ELK Designs Newcastle Pty Ltd v Wingecarribee Shire Council

[2022] NSWLEC 1726

Land and Environment Court

New South Wales

Medium Neutral Citation:

ELK Designs Newcastle Pty Ltd v Wingecarribee Shire Council [2022] NSWLEC 1726

Hearing dates:

Conciliation Conference on 24, 25 November 2022

Date of orders:

23 December 2021

Decision date:

23 December 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend the development application and rely on the amended plans and documents listed under condition 1 of Annexure A.

(2) The appeal is upheld

(3) Development Application number DA22/0404 for the demolition of the existing dwelling and ancillary structures and construction of a seniors housing development consisting of six dwellings at 4 Cypress Street, Bowral is determined by the grant of consent subject to the conditions in Annexure A

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a seniors housing development – amended plans – agreement between the parties – 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

Wingecarribee Local Environmental Plan 2010, cll 2.7, 7.3, 7.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 8.8, 6.61

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

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

Environmental Planning and Assessment Regulation 2021/2000

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
R O’Gorman Hughes (Applicant)
T March (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/106642

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of Development Application No DA/2022/0404 by Wingecarribee Council. The development application seeks approval for the demolition of the existing dwelling and ancillary structures on the subject site and construction of a seniors housing development of six two-storey self-contained dwellings. Since the filing of the appeal with the Court, the development application has been amended. This judgement relates to the amended development application. The development is proposed at 4 Cypress Parade, Bowral (Lot 23 DP 839174).

2. The Court arranged a conciliation conference between the parties on 15 August 2022 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), no agreement was reached, and that conciliation conference was terminated.

3. The matter was listed for hearing on 24 November 2022, commencing with an onsite view. Following an adjournment of the hearing, at the parties’ request, a further conciliation conference was held on 25 November 2022. I presided over the further conciliation conference. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. That decision agreed upon is for leave to be granted to amend the development application and for the grant of development consent, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. The development application, as amended in the course of the appeal proceedings is responsive to the evidence of the experts in the proceedings and the evidence of the objectors heard onsite on 24 November 2022. It is the experts agreed position that all contentions previously raised by the Respondent are resolved by the amended plans or by the annexed conditions of consent.

5. As the presiding Commissioner, I am satisfied that the decision 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). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. Wingecarribee Local Environmental Plan 2010 (LEP 2010) applies to the site. Pursuant to LEP 2010 the site is zoned R2 Low Density Residential. Development for the purposes of seniors housing is a use permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone.

3. Demolition is permitted with consent: cl 2.7 of LEP 2010.

4. The land is not subject to a maximum height standard or a maximum floor space ratio standard under LEP 2010.

5. Pursuant to cl 7.3: Earthworks of LEP 2010 consent is required for the earthworks proposed as part of the development application. In determining the development application, I have given consideration to the matters listed at cl 7.3(3) and I am satisfied that non warrant the refusal of the application.

6. Clause 7.10 of LEP 2010 requires the consent authority to be satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. The existing dwelling is connected to the water supply, electrical grid and the sewer. Further, the development application was referred to NSW Water who granted concurrence to the development application subject to conditions. Those conditions are incorporated in the annexed conditions of consent. I am satisfied that the precondition at cl 7.10 of LEP 2010 is met.

7. The subject site is within the mapped extent of the Sydney Drinking Water Catchment. Section 8.8 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies and requires an assessment of the effect of the proposed development on the Sydney Drinking Water Catchment and for the consent authority to be satisfied that the carrying out of the development would have a neutral or beneficial effect on water quality. On behalf of the Applicant, MPC Consulting Engineers have undertaken and assessment against the relevant criteria and concludes that the development will have a beneficial effect on water quality. I am satisfied that the precondition in s 6.61 of SEPP BC is met.

8. As required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 consideration has been given as to whether the subject site is contaminated. The development application includes a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

9. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the development is BASIX affected development. The development application is accompanied by the required BASIX certificate.

10. The development application was notified to adjoining and proximate properties. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

6. 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’ decision.

7. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

8. The Court orders that:

1. Leave is granted to the Applicant to amend the development application and rely on the amended plans and documents listed under condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Application number DA22/0404 for the demolition of the existing dwelling and ancillary structures and construction of a seniors housing development consisting of six dwellings at 4 Cypress Street, Bowral is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

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Annexure

Decision last updated: 23 December 2022