Ina Operations Pty Limited v MidCoast Council

[2023] NSWLEC 1699

Land and Environment Court

New South Wales

Medium Neutral Citation:

INA Operations Pty Limited v MidCoast Council [2023] NSWLEC 1699

Hearing dates:

Conciliation conference on 2 November 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA2022/1248 for alterations and additions to an existing caravan park at 321 Boomerang Drive, Blueys Beach (Lot 1 DP 862876) and 3901 The Lakes Way, Boomerang Beach (being part of Lot 83 DP 753168) is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – caravan park – long-term sites - orders

Legislation Cited:

Biodiversity Conservation (Savings and Transitional) Regulation 2017, cl 34A

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 37, 67

Great Lakes Local Environmental Plan 2014, cll 2.3, 4.3, 5.21, 7.1, 7.2, 7.5, 7.9, 7.21

Land and Environment Court Act 1979, s 34

Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993

Local Government Act 1993

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch4, s 4.9

State Environmental Planning Policy (Housing) 2021, Ch 3, Part 9, ss 131, 133

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch2, s 2.8, 2.10, 2.11, 2.12, 2.13, 4.6

Water Management Act 2000

Cases Cited:

Boyded Industries Pty Ltd v The Hills Shire Council [2022] NSWLEC 1297

Texts Cited:

MidCoast Council, Great Lakes Development Control Plan 2014

MidCoast Council, Great Lakes Coastal Zone Management Plan, 2016

Midcoast Council Community Engagement Strategy 2022-2025

Category:

Principal judgment

Parties:

INA Operations Pty Limited (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
K Mezinec (Solicitor)(Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
McCullough Robertson Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2023/255982

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA2022/1248 (the DA) for alterations and additions to an existing Caravan Park known as Palms Oasis, located at 321 Boomerang Drive, Blueys Beach (Lot 1 DP 862876) and 3901 The Lakes Way, Boomerang Beach (being part of Lot 83 DP 753168).

2. This proposal comprises Phase 2 of the redevelopment of the caravan park existing on the site. Phase 1 was approved by Development Consent DA149/2019 (2021 Consent) granted by the Land and Environment Court on 16 March 2021 for alterations and additions to an existing caravan park to be carried out over five stages. The 2021 Consent approved 69 new long-term sites, 13 new short-term sites and the retention of 22 existing long-term sites.

3. The alterations and additions proposed by the DA comprise:

1. amendment to the 2021 Consent by modifying:

1. overall staging of the development approved under development consent 149/2019, granted by the Court on 16 March 2021;

2. the stormwater control area;

3. the perimeter roads to a width of 10.56m with an 8m wide carriageway;

4. stage 3 to comprise 28 long-term sites;

5. stage 3A to comprise installation of a temporary community facility / clubhouse within stage 1 approved by the 2021 Consent;

6. stage 3B to include demolition of the existing community facility and construction of a new community facility;

7. stage 5 to comprise 36 long-term sites;

2. proposed earthworks, stormwater control, site servicing, landscaping, fencing and community works;

3. an additional 64 sites for long-term use, north of the Existing Caravan Park in the area recently rezoned for the expansion of the caravan park; and

4. amendment to the overall staging of the development consistent with the Masterplan drawing reference 239496-MP-005(H) lodged with the Class 1 Application, which will allow for the development of the Site in a manner that ensures park access and essential services remain operable for existing park residents throughout construction of the proposed development.

4. 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 2 November 2023. I presided over the conciliation conference, which was held in the Court. The on-site inspection was vacated at the request of the parties.

5. Five objectors made submissions by video link.

6. At the conciliation conference the parties indicated that they had 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 and granting development consent to the DA subject to conditions. The signed s 34 agreement with Annexure A was filed on 3 November 2023. An amended Annexure A was submitted on 16 November 2023.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

Environmental Planning and Assessment Act 1979

Owner’s consent

10. The DA was lodged by the registered proprietors of the subject site who provided owner’s consent.

Community Participation (Sch 1, Div 2, 7(1))

11. The DA was exhibited between 9 January and 23 February 2023 in accordance with Council’s Community Engagement Strategy. Thirty-eight submissions were received in response to that notification.

Conditions

12. The agreement includes the imposition of conditions which are imposed under s 4.17(1) and (5) of the EPA Act.

Modification of 2021 Consent (s 4.17(1)(b) and (c) and s 4.17(5)

13. The conditions of consent propose to modify the 2021 Consent as outlined in [3(1)] above and discussed further at [30]-[1]. Section 4.17(1)(b) and (c) and s 4.17(5) provide for the imposition of conditions in the DA to modify the 2021 Consent.

Integrated Development (s 4.46)

14. The proposed development is integrated development pursuant to s 4.46 as follows:

1. An integrated referral required to NSW Rural Fire Service (RFS) under s 100B of the Rural Fires Act 1997 as a long term caravan park is considered a “Special Fire Protection Purpose” and requires a Bushfire Safety Authority (BFSA) to be issued;

1. The RFS issued general terms of approval and a bushfire safety authority on 19 June 2023. The general terms of approval have been included in the proposed conditions of consent; and

2. The proposed development includes works within 30 metres of a first order water course. This requires “controlled activity approval” under the Water Management Act 2000; and

1. The NSW Department of Planning – Water issued conditions on 23 June 2023 which have been included in the proposed conditions of consent.

Great Lakes Local Environmental Plan 2014

15. In relation to the provisions of the Great Lakes Local Environmental Plan 2014 (GLLEP):

1. The development footprint of the site is zoned RE2 - Private Recreation under the provisions of cl 2.3 of the GLLEP. The balance of the site is zoned C2 – Environmental Conservation; and

1. Caravan Parks are permissible within the RE2 zone with development consent and prohibited in the C2 zone;

2. The proposed development is to be carried out entirely within the RE2 zoned area of the site;

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 4.3 of the GLLEP the maximum height of buildings on the site is 8.5 metres; and

1. The proposed community building has a height of 8 metres. No proposed buildings or structures will exceed the maximum building height.

3. There is no floor space ratio prescribed for the site by the GLLEP.

4. The site is not within a heritage conservation area under the GLLEP and does not contain any heritage items.

5. The provisions of cl 5.21 of the GLLEP concern flood planning. The western portion of the site is identified as being flood prone land under the LEP; and

1. To ensure the proposed development is free of future year 2100 regional flood waters inundation, the minimum habitable floor level has been set at 3.2m AHD having 0.5m freeboard above the peak 100-year flood level which includes sea level rise;

2. With the proposed filling and finished surface levels, the Site will not be adversely affected by mainstream flooding (including climate change) to the year 2100 and/or localised flooding; and

3. The parties advise that the proposed development is therefore acceptable having regard to the matters contained in clause 5.21 of the GLLEP.

6. The provisions of cl 7.1 of the GLLEP concern acid sulfate soils. The site is mapped as containing potential class 2, 3 and 5 Acid Sulfate Soils under the GLLEP; and

1. The parties advise there is potential for minor intrusion into acid sulfate soils with the invert of the stormwater control basin, watercourse and deeper services;

2. An Acid Sulfate Soils Management Plan was lodged with the DA, in accordance with cl 7.1(3) of the GLLEP.

7. The provisions of cl 7.2 of the GLLEP concern earthworks; and

1. The DA proposes earthworks including cut and fill and benching via retaining walls; and

2. The parties advise that the engineering plans lodged with the DA are considered acceptable with regards to the matters in cl 7.2(3) of the GLLEP.

8. The provisions of cl 7.5 of the GLLEP concern stormwater management; and

1. A stormwater management plan was lodged with the DA which proposes appropriate measures for the treatment and disposal of stormwater; and

2. The parties advise that the proposed development, together with the proposed conditions of consent, provide for appropriate stormwater management.

9. The Site is mapped as protection corridor on the Protection of Wildlife Corridors Map – Sheet PWC_012A under the GLLEP. Clause 7.9 of the GLLEP provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that any wildlife corridors will be maintained (or regenerated where necessary) to ensure their continued protection; and the development will not negatively impact on any wildlife corridor (whether directly or indirectly); and

1. The parties advise that the owner of the site has entered into a planning agreement with the Council under which 60.06ha of land within the identified protection corridor, including part of Lot 83 in DP 753168, has been dedicated to Council in order to protect the wildlife corridors;

2. In addition, the parties advise that an order pursuant to cl 34A(4) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 has been granted confirming that the proposed development is part of a relevant planning arrangement for which the biodiversity impacts of the proposed development have been satisfactorily assessed before 25 August 2017; and that conservation measures to offset the residual impact of the proposed development on biodiversity values after the measures required to be taken to avoid or minimise those impacts have been secured into the future;

10. Pursuant to c 7.21 of the GLLEP, development consent must not be granted unless the consent authority is satisfied that essential services for the proposed development are available, or that adequate arrangements have been made to make them available when required; and

1. The parties advise that the site is currently adequately serviced for water, electricity, communications, sewage and stormwater. Stormwater management upgrades are proposed to accommodate the expansion of the Caravan Park as proposed by the DA.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Pursuant to s 4.9(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) the consent authority must assess whether the development is likely to have any impact on koalas or koala habitat. Pursuant to s 4.9(3) of the Biodiversity and Conservation SEPP, the consent authority may grant consent to a DA if it is satisfied that the development is likely to have low or no impact on koalas or koala habitat; and

1. The proposed development benefits from the order pursuant to clause 34A(4) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 which confirms that the biodiversity impacts have been satisfactorily assessed and that conservation measures to offset residential impacts have been secured; and

2. The parties submit that as a consequence the proposed development is likely to have low or no impact on biodiversity, including koalas or koala habitat.

State Environmental Planning Policy (Housing) 2021

17. Chapter 3 Part 9 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the Proposed Development. Section 131 requires the Council to:

1. determine the number of sites that are suitable for long-term residence and the number of sites suitable for short-term residence, within the meaning of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993; and

2. impose a condition of consent, specifying the maximum number of sites (if any) within that land that may be used for long-term residence.

18. The DA seeks consent for 64 long-term sites in addition to the 91 approved long-term sites and 13 short-term sites. In total, the long-term sites approved on the site will be 155 and the total short-term sites will be13. The parties advise that this is considered to be acceptable. The proposed conditions of consent specify the number of long-term sites that can be used in accordance with s 131(3) of the Housing SEPP.

19. Section 133 of the Housing SEPP applies to the proposed development. The parties submit that the proposed development is acceptable having regard to matters to be considered by Council in the granting of development consent at s 133 (a) – (f).

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) applies to the site due to its location in the coastal zone. The site is mapped under the Resilience SEPP as being within “proximity area to coastal wetlands”. Section 2.8 of the Resilience SEPP provides that development consent must not be granted to development on land identified as in ‘proximity to coastal wetlands’ unless the consent authority is satisfied that the proposed development will not significantly impact on:

(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest; or

(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

21. The parties advise that a water quality management system consisting of a bioretention basin is proposed to control pollutants discharging from the site; and that modelling indicates that Council’s target pollutant reductions have been achieved which will ensure that the proposed development does not result in adverse impacts on downstream wetland environments.

22. The site is also partly mapped under the Resilience SEPP as being within the “coastal environment area”. Section 2.10 of the Resilience SEPP sets out considerations for development within the coastal environment area. The parties submit that the matters in s 2.10(1) are satisfied in that the proposed development will:

1. not result in significant biophysical, hydrological or ecological impacts;

2. not affect coastal environmental values or coastal processes;

3. incorporate appropriate stormwater quality controls to protect the water quality of downstream environments;

4. not impact on areas of public open space; and

5. not disturb any known items of Aboriginal heritage significance.

23. Section 2.11(1) of the Resilience SEPP sets out considerations for development of land within the coastal use area, which includes a small portion of the site. The footprint of the proposed development is not within the coastal use area. The parties have submitted that the proposed development will not cause an adverse impact in terms of the matters raised in s 2.11(1)(b) and that they are satisfied that the proposed development is designed to avoid any adverse impacts as required pursuant to s 2.11(1)(b).

24. Sections 2.12 and 2.13 of the Resilience SEPP apply to development in the coastal zone “generally”. Section 2.13 provides that the consent authority must not grant consent to a development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. The Council’s, Great Lakes Coastal Zone Management Plan(Management Plan) applies to the Site but has not yet been certified.

25. The parties advise that while s 2.13 of the Resilience SEPP does not strictly apply, the DA has been assessed against the provisions of the Management Plan, and that the DA is in keeping with the Management Plan.

26. Section 4.6 of the Resilience SEPP provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.

27. The site is identified as being potentially contaminated land, due to the former retail petrol outlet (bowsers and tank) located at the entry of the site, adjacent to the community building to be demolished.

28. The parties advise that:

1. The site is identified as being potentially contaminated land, due to the former retail petrol outlet (bowsers and tank) located at the entry of the site, adjacent to the community building to be demolished; and

2. As the removal of the underground fuel storage tanks previously located on the site has been finalised and associated site remediation completed, it is considered that the site is suitable for the proposed development. This has been confirmed by way of the Site Validation Report lodged with the DA and filed with the Class 1 Application.

Great Lakes Development Control Plan 201

29. The Great Lakes Development Control Plan 2014 (DCP) applies to the DA. The site is within the Pacific Palms coastal village precinct under the DCP; and

1. The parties submit that the proposed development is considered to be consistent with the character statement for the Pacific Palms locality and will not undermine the vision or desired future character of the area and that the proposed development is acceptable having regard to the relevant provisions of the DCP.

Modification of DA149/2019

30. Using the approach adopted by Espinosa C in Boyded Industries Pty Ltd v The Hills Shire Council [2022] NSWLEC 1297, the parties have agreed on conditions of consent including Condition 1 ‘Modification of earlier development consents’. This condition of consent requires the modification of the earlier 2021 development consent that applies to the site, pursuant to the mechanism provided for in s 67(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). Specifically, the applicant must submit a ‘notice of modification’ to the Respondent prior to the issue of a Construction Certificate.

30. The power to impose a condition such as Condition 1 is found in s 4.17(1)(b) of the EPA Act, which enables a condition of consent to be imposed if:

(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates

32. Section 4.17(5) also provides as follows:

If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations

33. The relevant regulation that applies pursuant to s 4.17(5) of the EPA Act is s 67 of the EPA Regulation. This regulation requires that written notice is to be provided to the consent authority for the modification of a development consent.

34. The proposed Condition 1 of the conditions of consent will facilitate and require the modification of the earlier 2021 development consent applicable to the site to make it consistent with the subject development consent.

Conclusion

35. 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.

36. 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.

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

38. The Court notes:

1. That MidCoast Council, as consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No. 2022/1248 made on 3 November 2023 to rely on the documents and plans specified below (the amended development application):

1. Drawing No. TP102, Ground Floor Plan, Revision 03 dated 1 November 2023.

2. Sanitary facilities calculation.

39. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA2022/1248 for alterations and additions to an existing caravan park at 321 Boomerang Drive, Blueys Beach (Lot 1 DP 862876) and 3901 The Lakes Way, Boomerang Beach (being part of Lot 83 DP 753168) is determined by the grant of consent subject to the conditions set out in Annexure A.

G Kullen

Acting Commissioner of the Court

**********

Annexure A (524019, pdf)

Decision last updated: 21 November 2023