HIWS Pty Ltd v Lake Macquarie City Council

[2024] NSWLEC 1240

Land and Environment Court

New South Wales

Medium Neutral Citation:

HIWS Pty Ltd v Lake Macquarie City Council [2024] NSWLEC 1240

Hearing dates:

Conciliation conferences on 22 March 2024 and 18 April 2024

Date of orders:

10 May 2024

Decision date:

10 May 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

(2) The Appeal is upheld.

(3) Development consent is granted to DA/2493/2022 for demolition of the existing structure on site; clearing part of the site, earthworks, construction of proposed driveway, drainage, retaining walls, utility services and site infrastructure including landscaping; construction of 10 x 2 storey units on site consisting of 3 bedroom units with garages; communal area and visitor car parking; and strata subdivision at 1 Kopa Street Whitebridge, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.3
Coal Mine Subsidence Compensation Act 2017, ss 21, 22
Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 4.47, 8.7
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997, s 100B

Biodiversity Conservation Regulation 2017

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Lake Macquarie Local Environmental Plan 2014, cll 2.3, 4.3, 5.10, 7.21
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Category:

Principal judgment

Parties:

HIWS Pty Limited (Applicant)
Lake Macquarie City Council (Respondent)

Representation:

Counsel:
M Ball (Solicitor) (Applicant)
M Smith (Solicitor) (Respondent)

Solicitors:
MBM Legal (Applicant)
Lake Macquarie City Council (Respondent)

File Number(s):

2023/217570

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of Development Application No. 2493/2022 for demolition of the existing garage, partial removal of vegetation (site clearing and asset protection zone purposes), construction of 10 multi dwellings, ancillary works and strata subdivision (DA) at 1 Kopa Street Whitebridge, legally known as Lot 3 in DP 804073 (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 22 March 2024 and continued 18 April 2024. I presided over the conciliation conferences.

3. 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. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

4. The Court notes that the Respondent, as the relevant consent authority, has approved under ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA/2493/2022 in accordance with the documents listed below (amended DA):

Architectural Plans prepared by: ELK Designs; Project Number. 21118
Name of Plan	Drawing Number	Issue	Date
Cover page	DA000	D	14/12/2023
Demolition plan	DA020	P5	20/03/2024
Site plan	DA030	P24	21/03/2024
Ground floor plan	DA100	P14	7/03/2024
First floor plan	DA101	P14	7/03/2024
Roof plan	DA150	P6	7/03/2024
Elevation	DA300	P9	7/03/2024
Elevations	DA301	P9	7/03/2024
Elevations	DA302	P5	7/03/2024
External finishes	DA350	D	14/12/2023
Sections	DA400	P5	7/03/2024
Sections	DA401	P2	7/03/2024
Landscape Plans prepared by: Paul Scrivener Landscape; Project Number. 22/2391
Name of Plan	Drawing Number	Issue	Date
Landscape plan	1 of 4	P	15.4.24
Planting plan	2 of 4	P	15.4.24
Notes and details	3 of 4	P	15.4.24
Tree plan	4 of 4	P	15.4.24
Engineering Plans prepared by: GCA Engineering Solutions; Project Number. 21405C
Name of Plan	Drawing Number	Issue	Date
Civil Works Plan	C01	10	19.03.24
Drainage details and section	C02	10	20.03.24
Pollution control pit details	C03	10	20.03.24
Erosion and sediment control plan	C04	10	20.03.24
Erosion and sediment control details	C05	10	20.03.24
Erosion and sediment control notes	C06	10	20.03.24
Centre line 01, 02 $ 03 longitudinal section	C07	10	20.03.24
Driveway cross section unit 1 to 10	C08	10	20.03.24

Document	Reference	Author	Date
Arborist report	1 Kopa Street, Whitebridge	Bradley Magus t/a Abacus Tree Services	21 March 2024
Bushfire report	Lot 3 DP 804073 1 Kopa Street, Whitebridge	MJD Environmental	27-10-2022
Bushfire supplementary letter	21075 bushfire letter	MJD Environmental	25 October 2023
Water cycle management plan	21405C	GCA Engineering Solutions	7 July 2023
Biodiversity Assessment	21075	MJD Environmental	7-07-2023
Expert opinion on the likely impacts of a proposed residential development at 1 Kopa Street Whitebridge on the Squirrel Glider	1 Kopa Street Whitebridge	Dr Chris McLean	March 2024

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. Under subs 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by subs 34(3) of the LEC Act, as set out below.

9. The DA was lodged to Council on 8 November 2022. I am satisfied that owners consent accompanied the development application.

10. The Respondent notified the DA between 8 November 2022 to 29 November 2022 and from 25 October to 16 November 2023. 7 submissions were received. At the commencement of the site viewing, the Court heard oral concerns from objectors, who primarily raised concerns in relation to privacy and vegetation clearing.

11. In reaching agreement, Council as the consent authority, has considered the concerns raised.

Biodiversity Act 2016

12. The subject site adjoins an area known to inhabit a threatened species, Petaurus norfolcensis (squirrel glider). The amended DA includes the clearing of native vegetation, establishment of a fire buffer zone and retention of a 28m native vegetation corridor on site adjoining the reserve (Fernleigh Track area). The amended DA relies on the following relevant reports:

• Biodiversity Assessment prepared by Matt Doherty dated July 2023 (Biodiversity Assessment)

• Ecology letter prepared by Matt Doherty/MJD Environmental dated 25 October 2023

• Expert opinion on the likely impacts of a proposed residential development at 1 Kopa Street Whitebridge on the Squirrel Glider prepared by Dr Chris McLean dated March 2024 (review report)

13. On the basis of these reports, the parties submit that a Biodiversity Development Assessment Report and any biodiversity offset scheme are not required, as the amended DA is below the stipulated threshold under the Biodiversity Act 2016 (BC Act) and Biodiversity Conservation Regulation 2017. The parties also submit that the site is not mapped on the Biodiversity Values Map of the BC Act.

14. Accordingly, the amended DA is accompanied by a Biodiversity Assessment and review report. The Biodiversity Assessment and review report considered the applicable five part test of s 7.3 in the BC Act and made recommendations that have been incorporated into the conditions of consent at Annexure A. I accept the parties’ agreement that the relevant provisions have been addressed and that the amended DA would not result in a serious and irreversible impact on the squirrel glider.

Coal Mine Subsidence Compensation Act 2017

15. As nominated on the development application form, the DA is Integrated development pursuant to s 4.46 of the EPA Act and s 22 of the Coal Mine Subsidence Compensation Act 2017 (Subsidence Act).

16. The parties advise that the amended DA has received an amended approval from Subsidence Advisory NSW and these have been included in the conditions of consent in Annexure A. I accept that the provisions of ss 4.46 and 4.47 of the EPA Act and ss 21 and 22 of the Subsidence Act have been met.

Rural Fires Act 1997

17. The subject site is identified as bush fire prone land. The amended DA has received General Terms of Approval pursuant to s 4.47 of the EPA Act and a Bush Fire Safety Authority, pursuant to s 100B of the Rural Fires Act 1997, from the NSW Rural Fire Service on 14 December 2023. The terms of the approvals have been included in the conditions of consent at Annexure A. I accept the parties’ agreement that the relevant provisions have been met.

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

18. The development application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead.

19. The amended DA is accompanied by amended BASIX Certificate 1293260M_02. The parties submit and I accept that the provisions of SEPP BASIX have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The Statement of Environmental Effects dated October 2022 (SEE) addresses SEPP RH and states that there is no evidence to indicate contamination on site. I accept the parties’ agreement that s 4.6 of SEPP RH has been met.

Lake Macquarie Local Environmental Plan 2014

21. The parties’, in their agreed submissions, state that the below provisions apply.

22. The site is zoned R3 Medium Density Residential and C2 Environmental Conservation under the Lake Macquarie Local Environmental Plan 2014 (LMLEP). The proposed development for multi dwellings is permissible with consent in the R3 zone. The portion of the site zoned C2 does not contain any physical works except for the retention and enhancement of the native vegetation in this area, approximately 28m in width. The vegetation works are permissible in the zone. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

23. Clause 4.3 height applies to the amended DA. The parties submit and I accept on the basis of the architectural plans prepared by ELK Designs dated 7 March 2024 that the development standard is not exceeded.

24. Clause 5.10 heritage conservation applies as the site is located near listed heritage items, Fettlers shed and Fernleigh track. I accept the parties’ submissions that the provisions of cl 5.10 have been considered.

25. Clause 7.21 essential services applies to the amended DA. The parties submit and I accept that adequate arrangements have been made for the supply of the listed services, as described in the SEE.

Conclusion

26. 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.

27. I have considered the jurisdictional prerequisites 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.

28. 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.

Orders

29. The Court orders that:

1. The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

2. The Appeal is upheld.

3. Development consent is granted to DA/2493/2022 for demolition of the existing structure on site; clearing part of the site, earthworks, construction of proposed driveway, drainage, retaining walls, utility services and site infrastructure including landscaping; construction of 10 x 2 storey units on site consisting of 3 bedroom units with garages; communal area and visitor car parking; and strata subdivision at 1 Kopa Street Whitebridge, subject to the conditions set out in Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 10 May 2024