Investments NQ Pty Ltd v Tweed Shire Council (No 2)

[2024] NSWLEC 1170

Land and Environment Court

New South Wales

Medium Neutral Citation:

Investments NQ Pty Ltd v Tweed Shire Council (No 2) [2024] NSWLEC 1170

Hearing dates:

4 March 2024

Date of orders:

11 April 2024

Decision date:

11 April 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No DA22/0423 for the construction of two dwellings, at 5 Razorback Road, Tweed Heads, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

(3) The exhibits, other than Exhibits 1, A, B, C, D, E and F, are returned.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision and construction of two dwellings – works in the public reserve requiring owner’s consent from Crown Lands – part of the site is mapped as littoral rainforest – the subdivision of the site is on land mapped as littoral rainforest – the proposal is designated development pursuant to s 2.7(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021 and the development application is to be accompanied by an environmental impact statement pursuant to ss 4.10(1) and 4.12(8) of the Environmental Planning and Assessment Act 1979 – parties directed to file a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.5, 4.10, 4.12, 4.16, 6.2, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 23

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.1, 2.3, 2.7, 2.8, 2.10, 4.6

Tweed City Centre Local Environmental Plan 2012, cll 2.6, 4.3, 4.4, 6.1, 6.6, 6.10

Cases Cited:

DL Newport Pty Ltd v Northern Beaches Council [2017] NSWLEC 1661

Investments NQ Pty Ltd v Tweed Shire Council [2024] NSWLEC 1108

Mulyan Pty Ltd v Cowra Shire Council & Anor (1999) 105 LGERA 26; [1999] NSWLEC 212

Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208

Category:

Principal judgment

Parties:

Investments NQ Pty Ltd (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

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

File Number(s):

2023/57604

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 refusal of Development Application No DA22/0423 for a two lot Torrens title subdivision and construction of two dwellings (the proposal), at 5 Razorback Road, Tweed Heads (the site), by Tweed Shire Council (the Council).

2. The appeal was subject to conciliation on 4 March 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(ii) of the LEC Act.

Issues

3. All the merit issues raised in the Statement of Facts and Contentions filed with the Court on 30 March 2023 have been resolved by amendments made to the application, as reflected in the Amended Statement of Facts and Contentions (Ex 1), except for two jurisdictional issues raised by the Council, as follows:

• The application must be refused because the application has not been accompanied by owner’s consent from NSW Crown Lands in circumstances where the application proposes works in the public reserve.

• The application for subdivision is designated development pursuant to s 2.7 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) because part of the site is mapped as a littoral rainforest area. The proposal for subdivision of the site is development that is declared to be designated development by an environmental planning instrument (EPI), pursuant to s 4.10(1) of the EPA Act. The application is not accompanied by an environmental impact statement as required for designated development under s 4.12(8) of the EPA Act.

The site

4. The site is legally known as Lot 2 DP 1085558. The site has an area of 1,888m² and a frontage of 43.8m to Lot 1 DP 923918. The site does not have a frontage to a public road as the Razorback Reserve terminates at the north-eastern corner of the site.

5. Lot 1 DP 923918 is a public reserve owned by Crown Lands and managed by the Council (the public reserve). The site has access from Razorback Road reserve via a Right of Carriageway (ROC) over the public reserve (Ex 2, tab 9, folio 43 and Ex B, tab 3).

6. Razorback Road is located along the ridgeline of a relatively narrow short ridge of land that is elevated above the surrounding land. The ridge has forested slopes with residential development mainly occurring on the lower slopes of the ridge. The site slopes steeply down from the public reserve.

The proposal

7. The proposal is for a two-lot Torrens title subdivision and subdivision works; construction of a dwelling with swimming pool on each lot; construction of a road; and the construction of a water supply system. The construction of the water supply system refers to the construction of an extension and meter from the existing water main within the public reserve to service the proposed Lot 2 (Ex 2, tab 8).

Jurisdictional pre-requisites

8. I have considered the submissions made by the applicant in the Note on Jurisdiction (Ex F) and I am satisfied that the jurisdictional pre-conditions to the grant of consent, excluding the two legal issues raised by the Council, are met by the proposal.

9. A small part of the site is mapped as littoral rainforest on the Coastal Wetlands and Littoral Rainforests Area Map. Section 2.8(1) Development on land in proximity to coastal wetland or littoral rainforest of SEPP Resilience requires the consent authority to be satisfied that the proposal 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”. Section 2.10 Development on land within the coastal environmental area requires the consent authority to consider whether the proposal is likely to cause an adverse impact on the matters listed under subs (1). I accept the conclusions of the Flora and Fauna Assessment dated July 2023 prepared by JWA Pty Ltd Consultants (Ex B, tab 14, p 9) that the proposal has been designed to avoid any direct impact on the area mapped as littoral rainforest and to mitigate any impact on adjoining land, including ground water flows, in the absence of any evidence to the contrary. A condition of consent is proposed requiring a positive covenant and restriction as to user to be registered over the 3m deep area described as the setback area to be managed as a littoral rainforest buffer zone in perpetuity (shown on Drawing DA-0-121, Ex C, tab 2).

10. I accept the parties’ agreement that the proposal is suitable for the site, pursuant to s 4.6 of SEPP Resilience.

11. The site is zoned R3 Medium Density Residential pursuant to the Tweed City Centre Local Environmental Plan 2012 (LEP 2012) and the proposal is an innominate use permissible with consent in the zone. The objectives of the R3 zone, to which regard must be had, are:

• 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.

12. The public reserve is zoned RE1 Public Recreation, and roads and water supply systems are permissible with consent in the zone. The objectives of the RE1 zone are:

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

13. Consent is required for subdivision, at cl 2.6 of LEP 2012.

14. There is no minimum lot size development standard for the site.

15. The height of buildings development standard for the site under cl 4.3 of LEP 2012 is 9m and the proposal complies with the 9m maximum height.

16. The floor space ratio (FSR) development standard for the site under cl 4.4 of LEP 2012 is 0.8:1 and the proposal complies with the maximum FSR.

17. The site is classed as Class 5 acid sulphate soils and the proposal is not caught by the works for Class 5 land that triggers consideration under cl 6.1 of LEP 2012.

18. Clause 6.6 Minimum building street frontage of LEP 2012 requires development on land in the R3 zone to have at least one street frontage of 20m or more. The consent authority may grant consent to the erection of a building on land with a street frontage of less than 20m if it is of the opinion that the physical constraints of the site or an adjoining site/s make it not possible for the building to be erected without at least one street frontage of 20m, and the development is consistent with the aims of the plan. The Council submitted that no issue is raised in reference to this provision. I accept and agree with the Council’s submission; the constraint of the site adjoining the public reserve makes it impossible for the future lots to have a street frontage of at least 20m.

19. I accept and agree with the Council’s submission that the proposal exhibits design excellence pursuant to the cl 6.10 of LEP 2012, having considered each of the matters under subcl (3).

Owner’s consent

20. A development application may be made by the owner of the land, or another person, with the written consent of the owner of the land, at s 23(1) of the Environmental Planning and Assessment Regulation 2021 (Regulation 2021). The public reserve is owned by Crown Lands and the proposal includes a driveway over the public reserve. The requirement is a jurisdictional pre-requisite to a valid application.

21. The parties disagreed on whether the letter from Kate Taylor A/ Snr NRM Officer at the Department of Planning, Housing and Infrastructure – Crown Lands gives owner’s consent for the lodging of the application. According to the applicant, owner’s consent for the works on the public reserve is cured by the terms of the letter. According to the Council, the letter is conditional, and the consent is not operative until certain things are done, including the Council obtaining an easement over the proposed water infrastructure within the public reserve.

22. The letter is in the following terms:

“Consent is granted by the delegate of Minister for Lands and Property to the lodging of a development application under the Environmental Planning and Assessment Act 1979, and other associated applications required under other legislation, for the development described above.

This consent is subject to the following:

(1) This Consent is given without prejudice so that consideration f the proposed development may proceed under the Environmental Planning and Assessment Act 1979 and any other relevant legislation.

(2) This Consent does not imply the concurrence of the delegate of the Minister for Land and Property for the proposed development, or the issue of any necessary lease, licence or other required approval under the Crown Land Management Act 2016; and does not prevent the Department of Planning and Environment – Crown Lands from making any submission commenting on.

(3) This Consent will expire after a period of 12 months from the date of this letter if not acted on within that time. Extensions of this consent can be sought.

(4) The Minister reserves the right to issue Landowner’s Consent for the lodgement of applications for any other development proposals on the subject land concurrent with this Landowner’s Consent.

(5) Irrespective of any development consent or any approval given by other public authorities, any work or occupation of Crown Land cannot commence without a current tenure from the Department of Planning, Housing and Infrastructure – Crown Lands or Tweed Shire Council as the Crown Land Managers authorising such work or occupation.

(6) Tweed Shire Council obtaining an easement over the water infrastructure in-front of the proposed development on the Crown Land reserve 1002208.

This letter should be submitted to the relevant consent or approval authority in conjunction with the development application and/or any other application.

It is advised that the Department of Planning, Housing and Infrastructure – Crown Lands will inform Tweed Shire Council of the issue of this Landowner’s Consent and will request that Tweed Shire Council notify the Department of Planning, Housing and Infrastructure – Crown Lands of the subsequent development application, for potential comment, as part of any public notification procedure.

You are required to forward to Department of Planning, Housing and Infrastructure – Crown Lands a copy of any development consent or other approval as soon as practical after that consent or approval is received.

If any modifications are made to the application (whether in the course of assessment, by conditions of consent, or otherwise), it is your responsibility to ensure the modified development remains consistent with this Landowner’s Consent.”

23. The applicant noted that this is a proforma letter. According to the applicant, the letter is not a promise of future consent, but instead is written in the present tense, “consent is granted”. The purpose of the letter is so that consideration of the application may proceed, without prejudicing Crown Lands from making an objection to the proposal. The letter makes a clear distinction between what happens under the EPA Act and what happens under its property rights. Crown Lands consents to the making of the application but has not given consent to carry out works under property law. The requirement at (6) for the Council to obtain an easement is not a pre-condition to the granting of consent to make an application, it is instead a requirement after the granting of development consent to the proposal and prior to works commencing.

24. The applicant also relies on an email sent by Shannon Powell, Group Leader Property Management, Land and Asset Management – North Coast, Crown Land & Public Spaces, Department of Planning, Housing and Infrastructure, dated 29 February 2024 (Ex E) responding to an inquiry by the applicant’s solicitor as to whether the letter constitutes a valid owner’s consent for the lodging of the application. The email includes the following:

“The LOC [Landowner’s Consent to lodge a development application] is not a conditional approval to the lodgement of the development application and does not require the easement being in place before development consent is granted by the relevant authority…

If the Development consent is granted, then either Council or the Applicant may lodge a licence application with our office, prior to the commencement of the approved works and finalisation of the compulsory acquisition process. If the compulsory acquisition for an easement is finalised, at a time after consent is granted and before works commence, a Licence will not be required.”

25. The Council submitted that the letter is conditional upon a number of matters, and those matters are preconditions to the consent to lodge the application. The Council submitted that a consent that is not operative until the happening of future events is not a consent at all: Mulyan Pty Ltd v Cowra Shire Council & Anor (1999) 105 LGERA 26; [1999] NSWLEC 212 at [33]. A plain reading of the letter says it is not operative until certain things are done, and consent is dependent on those things occurring, as evidenced by the words, “subject to…”. Condition 6 requires an easement over the water infrastructure as part of the pre-conditions to the grant of owner’s consent to the lodging of the application. The applicant cannot rely on the email as confirming owner’s consent under s 23(1) of the Regulation 2021. The Commissioner’s decision in DL Newport Pty Ltd v Northern Beaches Council [2017] NSWLEC 1661 at [29] is distinguishable because the letter in that case used different words, qualifying that the letter was subject to conditions, whereas the letter in this matter is drafted so that the consent is subject to conditions.

26. The applicant submitted that the consent of the owner, having been given, is irrevocable: Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [81]-[82]. Therefore, the subsequent amendment of the application on 26 February 2024 does not affect the status of the consent given on 12 January 2024.

27. I accept the applicant’s submissions regarding the letter from Department of Planning, Housing and Infrastructure – Crown Lands dated 12 January 2024 (“the letter”, attached to Ex E) being consent for the lodging of the application for the reasons set out at [23].

The application of section 2.7 of State Environmental Planning Policy (Resilience and Hazards) 2021

28. Part of the land, being 0.051m² adjacent to the western end of the northern boundary (Ex 5), is mapped as littoral rainforest on the Coastal Wetlands and Littoral Rainforests Area Map. SEPP Resilience commenced on 1 March 2022 and the proposal was lodged on 13 July 2022. SEPP Resilience applies to the proposal at s 2.3.

29. Section 2.7 of SEPP Resilience is in the following terms:

2.7 Development on certain land within coastal wetlands and littoral rainforests area

(1) The following may be carried out on land identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map only with development consent—

(a) the clearing of native vegetation within the meaning of Part 5A of the Local Land Services Act 2013,

(b) the harm of marine vegetation within the meaning of Division 4 of Part 7 of the Fisheries Management Act 1994,

(c) the carrying out of any of the following—

(i) earthworks (including the depositing of material on land),

(ii) constructing a levee,

(iii) draining the land,

(iv) environmental protection works,

(d) any other development.

Note—

Clause 2.14 provides that, for the avoidance of doubt, nothing in this Part—

(a) permits the carrying out of development that is prohibited development under another environmental planning instrument, or

(b) permits the carrying out of development without development consent where another environmental planning instrument provides that the development may be carried out only with development consent.

(2) Development for which consent is required by subsection (1), other than development for the purpose of environmental protection works, is declared to be designated development for the purposes of the Act.

…

30. Subdivision of land is development, pursuant to s 1.5(1)(b) of the EPA Act.

31. Section 6.2(1) of the EPA Act defines subdivision as follows:

… subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition.

32. The applicant submitted that the proposed subdivision would only be “carried out on land” (emphasis added) (citing the terms of the provision) if the subdivision divided the area mapped as littoral rainforest across two future lots. The area mapped as littoral rainforest is instead located on a proposed single lot and as such the provision is not triggered on the proper construction of s 2.7 of SEPP Resilience because there are no works on the area mapped as littoral rainforest.

33. The applicant submitted that the aims of Ch 2 of SEPP Resilience, at s 2.1, should be kept in mind when construing s 2.7. It is not necessary for the regime for designated development to apply to an application where the unity of the environmentally sensitive land is being maintained.

32. In the alternative, the applicant submitted that the area of land mapped as littoral rainforest on the site is so insignificant as to make the issue de minimis.

33. The Council submitted that the proposal for the subdivision of the site is “any other development” under s 2.7(1)(d) of SEPP Resilience. The subdivision of the site is development, pursuant to s 1.5 of the EPA Act and consent is required for that development, under LEP 2012. The proposal for the subdivision of the site is, as a consequence of being caught by s 2.7(1), designated development under s 2.7(2) and as such, an environmental impact statement is required pursuant to s 4.12(8) of the EPA Act because the development is declared to be designated development by an EPI, pursuant to s 4.10(1) of the EPA Act.

34. The Council submitted that the subdivision of the land incorporates the whole of the site. The area mapped as littoral rainforest is part of the subdivision. Had the area mapped as littoral rainforest been carved out of the subdivision proposal, then the applicant’s argument has substance. Instead, the area mapped as littoral rainforest is to form part of one of the subdivided lots and as such, the application requires an environmental impact statement as a jurisdictional prerequisite to the grant of consent.

35. I accept the Council’s submissions based on the construction at [35] and for the reasons given at [36].

Conclusion

38. The applicant submitted that if I find that the proposal is designated development pursuant to s 2.7(2) of SEPP Resilience, the Court should grant development consent for the development, other than the proposed subdivision (as per s 4.16(4) of the EPA Act). The applicant requested an interim judgment be handed down with a direction that the parties prepare a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works. The Council agreed with this course on the basis that the proposed development is then a dual occupancy development, which is an innominate use permissible in the zone with consent and a dual occupancy development is not on the land mapped as littoral rainforest.

Directions

39. On 14 March 2024, the Court directed the parties to file a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works (Investments NQ Pty Ltd v Tweed Shire Council [2024] NSWLEC 1108).

40. The parties filed the revised set of conditions on 28 March 2024 (Annexure A).

Orders

41. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No DA22/0423 for the construction of two dwellings, at 5 Razorback Road, Tweed Heads, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 1, A, B, C, D, E and F, are returned.

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 11 April 2024