Hobson v Mid Coast Council

[2025] NSWLEC 1007

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hobson v Mid Coast Council [2025] NSWLEC 1007

Hearing dates:

Conciliation conference on 31 October 2024

Date of orders:

09 January 2025

Decision date:

09 January 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA-2022/0866 for demolition of existing structures and construction of multi-dwelling housing, consisting of seven (7) three (3) bedroom dwellings on land described as Lots 18 & 19 DP 234442, being 24-26 Wharf Road, Tuncurry is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7, 4.16

Land and Environment Court Act 1979 s 34

Environmental Planning and Assessment Regulation 2021 s 38

Great Lakes Local Environmental Plan 2014 cl 4.3, 4.4, 5.21, 7.1, 7.2, 7.21,

State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 2, ss 2.10, 2.11, 2.12, 2.13, 4.6

Category:

Principal judgment

Parties:

Pamela Hobson (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2024/205154

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Mid-Coast Council, of development application DA2022/0866 which seeks consent for the demolition of existing structures and construction of multi-dwelling housing, consisting of eight dwellings on land described as Lot 18 and Lot 19, DP 234442, known as 24-26 Wharf Street, Tuncurry.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 October 2024. I presided over the conciliation conference.

4. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately respond to the contentions raised in these proceedings. Of particular note is the reduction of the number of townhouses proposed from eight to seven.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified in a jurisdictional note. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified in accordance with the Mid-Coast Community Engagement Strategy 2022-2025 from 8 to 26 August 2022. One late submission was received, and two residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. The parties agree that the amended application does not necessitate renotification.

9. The subject site is zoned R3 Medium Density Residential under the Great Lakes Local Environmental Plan 2014 (GLLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Subdivision is not proposed, and so the site, with an area of 1,624.5m² continues to apply with the minimum lot size control of 1,000m².

11. Pursuant to GLLEP cl 4.3, a maximum building height of 12m applies to the subject site. The proposed development complies with this development standard with a maximum height of 7m.

12. GLLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 1:1. The proposed development again complies with this development standard with a maximum FSR of 0.67:1.

13. The site is located within the flood planning area. From the parties’ submissions, the agreed conditions of consent and the stormwater concept plans by Chris Jenkins Design dated 2 December 2012, I accept that the matters at cl 5.21(3) of the GLLEP have been considered, and the proposed development meets the requirements of cl 5.21(2).

14. Pursuant to GLLEP cl 7.1, the site is identified as Class 3 on the Acid Sulfate Soils Map, potentially containing acid sulfate soils. Accordingly, an Acid Sulfate Soils Management Plan accompanies the amended development application, and has been accepted by the Council.

15. The proposed development includes minor earthworks with no soil proposed for removal from site. Accordingly, I accept the parties’ submission that the matters listed in GLLEP cl 7.2(3) have been considered and the earthworks of the proposed development are acceptable.

16. From the parties’ submission, the agreed conditions of consent, the stormwater concept plan by Chris Jenkins Design dated 2 December 2024, and the proposed architectural plans also by Chris Jenkins Design dated 2 December 2024, I accept that the proposed development meets the stormwater management requirements of GLLEP cl 7.5(2).

17. Pursuant to GLLEP cl 7.21, from the parties’ submission, the agreed conditions of consent, the documents that constitute the amended application and the fact that the site features an existing residential use, I accept that all essential services listed in cl 7.21 are available, or can be made available when required.

18. This application is captured by the savings provisions in the State Environmental Planning Policy (Sustainable Buildings) 2022, and is therefore subject to the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Accordingly, BASIX certificates for each dwelling accompany the development application.

19. The land is zoned Coastal Use Area and Coastal Management Area for the purposes of Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). From the parties’ submission and the information contained in the amended application, I accept that the development has been designed, sited, and will be managed to avoid an adverse impact on the coastal environment area of the type identified in s 2.10(1). I further accept that the impacts on the coastal use area identified in s 2.11(1) do not arise, or are otherwise minimised in the amended application. I finally accept that the proposed development is not likely to cause increased risk of coastal hazards (s 2.12), and that no certified coastal management program applies to the land (s 2.13).

20. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

Conclusion

21. For these reasons, 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 s 34(3) of the LEC Act. I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

22. The Court notes:

1. Mid Coast Council as the relevant consent authority has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the description of development application DA-2022/0866 to demolition of existing structures and construction of multi-dwelling housing, consisting of seven (7) three (3) bedroom dwellings on land described as Lots 18 & 19 DP 234442 and amending the development application in accordance with the plans listed below:

1. Architectural Plans prepared by Chris Jenkins Design dated 12.12.2024.

Page	Description	Rev
DA01	Location Plan	A
DA03	Proposed Site Plan	I
DA04	Existing Site Plan Showing Demolition	A
DA05	Proposed Lower Floor Plan	E
DA06	Proposed Upper Floor Plan	D
DA07	Elevations	D
DA08	Elevations	D
DA09	Sections	C
DA10	Sections	C
DA11	Shadow Diagram – 9am + 10am 21 June	D
DA12	Shadow Diagram – 11am + 12pm 21 June	D
DA13	Shadow Diagram – 1pm + 2pm 21 June	D
DA14	Shadow Diagram – 3pm 21 June	D
DA15	FSR Calculation	C
DA16	Proposed Landscape Plan	A
DA17	Proposed Private Open Space	A
DA18	Proposed Stormwater Concept	A
DA19	Driveway Details	A
DA20	Materials Section	A

2. BASIX Certificates prepared by Chris Jenkins Design dated 10.12.24

Unit	Document	No.
1	BASIX Certificate	1305212S_02
2	BASIX Certificate	1305194S_02
3	BASIX Certificate	1293906S_02
4	BASIX Certificate	1305201S_02
5	BASIX Certificate	1292466S_02
6	BASIX Certificate	1305215S_02
7	BASIX Certificate	1305235S_02

Orders

23. The Court orders:

1. The appeal is upheld.

2. Development Application DA-2022/0866 for demolition of existing structures and construction of multi-dwelling housing, consisting of seven (7) three (3) bedroom dwellings on land described as Lots 18 & 19 DP 234442, being 24-26 Wharf Road, Tuncurry is determined by the grant of consent subject to the conditions set out in Annexure A.

E Washington

Commissioner of the Court

Annexure A

**********

Decision last updated: 09 January 2025