Franciscan Order of Friars Minor v Campbelltown City Council

[2024] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation:

Franciscan Order of Friars Minor v Campbelltown City Council [2024] NSWLEC 1058

Hearing dates:

Conciliation conference held on 15 February 2024

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 1933/2022/DA-SW, as amended, for the subdivision of land to create 57 Torrens title residential lots, demolition of structures, clearing of vegetation, earthworks, construction of an underground on-site detention basin (and dedication to Council), construction of public roads and cycleway, and associated landscaping, at 168 Narellan Road, Campbelltown, legally described as Lot 3 in DP 1213869 and Lot 954 in DP 1027535, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land to create Torrens title residential lots – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.12, 7.7, 7.13

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Water Management Act 2000, s 91

Biodiversity Conservation Regulation 2017, 7.2

Campbelltown Local Environmental Plan 2015 cll 2.6, 7.1

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, ss 4.4, 4.8 and Sch 2

Texts Cited:

Campbelltown Comprehensive Koala Plan of Management, s 7.1

Category:

Principal judgment

Parties:

Franciscan Order of Friars Minor (Applicant) Campbelltown City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/346358

Publication restriction:

Nil

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 the deemed refusal of Development Application No. 1933/2022/DA-SW, as amended, for the subdivision of land to create 57 Torrens title residential lots, demolition of structures, clearing of vegetation, earthworks, construction of an underground on-site detention basin (and dedication to Council), construction of public roads and cycleway, and associated landscaping (the proposal), at 168 Narellan Road, Campbelltown, legally described as Lot 3 in DP 1213869 and Lot 954 in DP 1027535 (the site), by Campbelltown City Council (the Council).

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 15 February 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.

Amended application

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

Jurisdictional matters

6. The site is not mapped as having biodiversity value for the purposes of the Biodiversity Conservation Act 2016 (BC Act). A small section of the site is mapped as Terrestrial Biodiversity under the Campbelltown Local Environmental Plan 2015 (LEP 2015). The application proposes clearing 2.92ha of native vegetation, exceeding the threshold of 0.25ha set by cl 7.2 of the Biodiversity Conservation Regulation 2017 (BC Regulation). Section 7.7 of the BC Act provides that where a proposal is likely to significantly affect threatened species, the application for development consent must be accompanied by a biodiversity development assessment report (BDAR). In compliance with ss 7.7 and 6.12 of the BC Act, the applicant has prepared an Amended Biodiversity Development Assessment Report prepared by Cumberland Ecology dated 6 February 2024. The assessment indicates that the removal of the native vegetation within the site will require an offset of 1 ecosystem credit for PCT 3320, 1 ecosystem credit for PCT 3975 and 15 species credits for impacts on the Southern Mytosis. Pursuant to s 7.13(4) of the BC Act, a consent authority may increase the number of biodiversity credits that would otherwise be required to be retired if the consent authority determines that the increase is justified having regard to the environmental, social and economic impacts of the proposal.

7. The parties agreed to an increase in the biodiversity credits and this is address by condition 36 of the conditions of consent at Annexure A. The BDAR undertakes the required method of assessment for the proposal, including the assessment of avoidance strategies and recommends the implementation of a number of mitigation measures, and compliance with the measures is incorporated into the conditions of consent at Annexure A. An amended Vegetation Management Plan (VMP) prepared by Cumberland Ecology dated 15 February 2024 is included as part of the application, as recommended by the BDAR and compliance with the VMP is a condition of consent.

8. The application is an integrated development for the purposes of s 4.46 of the EPA Act, as the site is mapped as Bushfire Prone Land on the NSW Rural Fire Service mapping tool. A bushfire safety authority must be obtained for subdivision on bushfire prone land, pursuant to s 100B of the Rural Fires Act 1997 (RF Act). The assessments prepared by ABPP demonstrate that the proposal is capable of complying with the requirements of Planning for Bushire Protection and the RFS has issued a Bushfire Safety Authority pursuant to s 100B of the RF Act including general terms of approval (GTAs) which are incorporated in the conditions of consent at Annexure A.

9. The proposal is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal includes works that are within 40m of a watercourse and approval is required for a controlled activity, pursuant to s 91 of the Water Management Act 2000. The Department of Planning and Environment – Water NSW issued GTAs which are included in the conditions of consent at Annexure A.

10. Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the site at s 4.4(1) and Sch 2. Determination of an application is to be consistent with any approved koala plan of management, pursuant to s 4.8. The Campbelltown Comprehensive Koala Plan of Management (CKPOM) is approved and identifies a small portion of the site as containing potential koala habitat. The application includes a Koala Activity Assessment Report prepared by Niche Environmental and Heritage dated 25 July 2023 and the assessment did not identify the presence of any koala activity. The applicant has prepared a Letter of Offer which confirms that compensation will be paid via a Voluntary Planning Agreement, pursuant to s 7.1 of the CKPOM.

11. The site is zoned R2 Low Density Residential and R3 Medium Density Residential pursuant to LEP 2015 and the proposal is permissible with consent pursuant to cl 2.6. The objectives of the zone, to which regard must be had, are:

Zone R2 Low Density Residential

1 Objectives of zone

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

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

• To enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.

• To minimise overshadowing and ensure a desired level of solar access to all properties.

• To facilitate diverse and sustainable means of access and movement.

Zone R3 Medium Density Residential

1 Objectives of zone

• 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.

• To provide for a wide range of housing choices in close proximity to commercial centres, transport hubs and routes.

• To enable development for purposes other than residential only if that development is compatible with the character and scale of the living area.

• To minimise overshadowing and ensure a desired level of solar access to all properties.

12. The relevant matters concerning earthworks listed under cl 7.1(3) of LEP 2015 are satisfactorily addressed by the Civil Engineering plans and the Geotechnical Investigation Report which form part of the application.

Conclusion

13. I have considered the agreed submissions made by the parties in the Jurisdictional Note filed with the Court on 15 February 2024 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

14. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 1933/2022/DA-SW, as amended, for the subdivision of land to create 57 Torrens title residential lots, demolition of structures, clearing of vegetation, earthworks, construction of an underground on-site detention basin (and dedication to Council), construction of public roads and cycleway, and associated landscaping, at 168 Narellan Road, Campbelltown, legally described as Lot 3 in DP 1213869 and Lot 954 in DP 1027535, is determined by the grant of consent, 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: 21 February 2024