JFPG013 Pty Ltd (ACN 655 002 387) ATF JFPG013 Unit Trust v Shoalhaven City Council

[2023] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation:

JFPG013 Pty Ltd (ACN 655 002 387) ATF JFPG013 Unit Trust v Shoalhaven City Council [2023] NSWLEC 1539

Hearing dates:

Conciliation conference on 15 September 2023

Date of orders:

19 September 2023

Decision date:

19 September 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA22/2061 for the construction of an eight unit multi dwelling housing development and associated works at 8-10 Davies Street, Mollymook, subject to the conditions of consent at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, s 34

Shoalhaven Local Environmental Plan 2014, cll 4.1A, 4.3, 4.4, 7.1, 7.2, 7.4, 7.11

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

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

Category:

Principal judgment

Parties:

JFPG013 Pty Ltd (ACN 655 002 387) ATF JFPG013 Unit Trust (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
N Nadj (Solicitor) (Applicant)
S Neilson (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Shoalhaven City Council (Respondent)

File Number(s):

2023/168455

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Shoalhaven City Council (the Respondent) of development application No DA22/2061 that seeks development consent for a multi dwelling housing development comprising eight dwellings and associated works, infrastructure and landscaping across two adjoining lots described as Lots 192 and 193 in DP 30301, otherwise known as 8-10 Davies Street, Mollymook.

2. On 15 September 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 11 September 2023, in accordance with s 34(10) of the LEC Act.

4. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. The development application is supported by the written consent of the owner. The Council advertised the development application between 11-26 October 2022, in response to which three submissions were received.

8. The site is located within the R3 Medium Density Residential zone, as identified by the Shoalhaven Local Environmental Plan 2014 (SLEP), in which multi dwelling development and associated works such as infrastructure and landscaping is permitted with consent, where consistent with the following objectives:

•  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 opportunities for development for the purposes of tourist and visitor accommodation where this does not conflict with the residential environment.

9. The site, when the area of the two lots is aggregated, is 2,024m² which is greater than the minimum lot size for multi dwelling housing at cl 4.1A of the SLEP, of 900m², and of which no part is a battle-axe to which cl 4.1A(3) is directed.

10. As the Height of Buildings Map at cl 4.3(2) does not show a maximum height for the subject site, the height of a building on the land is not to exceed 11m.

11. Likewise, the site is not identified on the Floor Space Ratio Map at cl 4.4(2) of the SLEP, and so there is no FSR standard applied to the site.

12. The site is identified on the Acid Sulfate Soils Map at cl 7.1(2) of the SLEP being within an area classified Class 5 soils. However, as the proposed development comprises only minor excavation for the construction of footings that will not lower the water table, an Acid Sulfate Soils Management Plan is not required.

13. On the basis of the Stormwater Management Plans prepared by Le Motte Group, the architectural plans prepared by ELK Designs, and the Landscape plans prepared by JK’s Garden Creations & Tolero Landscape Design, and the agreed conditions of consent in respect of earthworks, I have considered those matters at cl 7.2(3) of the SLEP and regard the earthworks as minor and adequately addressed.

14. The site is not identified on the Coastal Risk Planning Area at cl 7.4 of the SLEP.

15. As the site is within a highly urbanised area adjacent to development with access to essential services of a sort described at cl 7.11 of the SLEP, I am satisfied that essential services are available to the site.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies to the site. Section 2.10 requires consideration to be given as to whether the proposal is likely to adversely impact the coastal environmental values and natural coastal processes.

17. A Flora and Fauna Assessment prepared by Ecological Australia dated 4 August 2022 concludes the development will not adversely those values and processes.

18. Section 4.6 of the SEPP Resilience and Hazards precludes development consent to any development unless it has been considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable, or will be suitable after undergoing remediation, for the proposed use.

19. The site is a part of an earlier subdivision for which consent was granted after considering the matter of contamination. The conclusion at that time, and again now, is that the site is not likely to be contaminated and so is suitable for the purpose for which development is proposed.

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

20. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1295076M_02), prepared by Building Sustainability Assessments dated 30 August 2022 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021.

Conclusion

21. 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.

22. 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.

23. The Court notes that:

1. Shoalhaven City Council, as the relevant consent authority has approved, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application No. DA22/2061 the subject of these proceedings to rely upon amended plans specified in Annexure A.

2. The amended plans cited in Annexure A were filed with the Court on 11 September 2023.

Orders

24. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA22/2061 for the construction of an eight unit multi dwelling housing development and associated works at 8-10 Davies Street, Mollymook, subject to the conditions of consent at Annexure B.

T Horton

Commissioner of the Court

168455.23 Annexure A

168455.23 Annexure B

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Decision last updated: 19 September 2023