Kavlana Pty Limited v Campbelltown City Council

[2019] NSWLEC 1607

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kavlana Pty Limited v Campbelltown City Council [2019] NSWLEC 1607
Hearing dates:	Conciliation conference on 8 November 2019
Date of orders:	05 December 2019
Decision date:	05 December 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The applicant is granted leave to amend the development application to rely upon the documents and plans referred to in Condition 1 of ‘Annexure 1’. (2) The applicant’s written objection by Rhodes Haskew Associates, pursuant to clause 6 of State Environmental Planning Policy No 1 – Development Standards (SEPP 1) in relation to the non-compliance with the minimum site area development standard set out in clause 7(4) of Campbelltown Local Environmental Plan No. 1 has been considered and I have formed the necessary opinion of satisfaction under clause 7 of SEPP 1. Consequently, the applicant’s written objection is well founded and upheld. (3)   The appeal is upheld. (4)   Development Application 466/2014/DA-S for the subdivision of land legally known as Lot A, DP 449151, commonly known as 15 Aberfoyle Road, Wedderburn into two Torrens title allotments is approved subject to the conditions set out in ‘Annexure 1’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Campbelltown Local Environmental Plan 2015 Campbelltown Local Environmental Plan No 1 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 – Development Standards State Environmental Planning Policy No 44 – Koala Habitat Protection
Category:	Principal judgment
Parties:	Kavlana Pty Limited (Applicant) Campbelltown City Council (Respondent)
Representation:	Counsel: J Reid (Applicant) K Gerathy (Solicitor) (Respondent)   Solicitors: Meehans Solicitors Pty Ltd (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/336789
Publication restriction:	No

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 Campbelltown City Council refusal of Development Application 2466/2014/DA-S (the Application) for the subdivision of 15 Aberfoyle Road, Wedderburn into two Torrens title allotments.

2. The background facts are set out in the Council’s Statement of Facts and Contentions (SOFAC) filed with the Court on 13 December 2018.

3. In accordance with the Court’s usual practice, a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), was convened between the parties on 8 November 2019. I presided over the conciliation.

4. During the conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the applicant’s amended application on a conditional basis.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the decision is one that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In this instance, the development does not comply with the minimum site area development standard in cl 7(4) of the Campbelltown Local Environmental Plan No 1 which applies by dint of cl 1.8A of the Campbelltown Local Environmental Plan 2015. To address this, the applicant relies upon an objection to the standard under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) prepared by Rhodes Haskew Associates. Based on the SEPP 1 written request I am satisfied that compliance with the standard is unreasonable or unnecessary in this case because the development, in my assessment, achieves the objectives of the clause despite the breach. In that regard, I accept that the development is consistent with the prevailing lot sizes with the locality and is thereby compatible with the existing and the desired future character of the area. I am also satisfied that the ecological, bushfire and waste water expert evidence with regard to the preservation and maintenance of the environmentally sensitive land within the site supports an approval of this application. As the SEPP 1 states, there is no evidence of Koala presence within the Open Grass/ Woodland community area located at the northern and south – western boundaries of the site. It is therefore not Koala habitat. Nonetheless, in accordance with cl 13(2) of the State Environmental Planning Policy No 44 – Koala Habitat Protection, the applicant has obtained an approved Koala Plan of Management dated March 2019 for the site.

6. 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.

7. The Court orders:

1. The applicant is granted leave to amend the development application to rely upon the documents and plans referred to in Condition 1 of ‘Annexure 1’.

2. The applicant’s written objection by Rhodes Haskew Associates, pursuant to clause 6 of State Environmental Planning Policy No 1 – Development Standards (SEPP 1) in relation to the non-compliance with the minimum site area development standard set out in clause 7(4) of Campbelltown Local Environmental Plan No. 1 has been considered and I have formed the necessary opinion of satisfaction under clause 7 of SEPP 1. Consequently, the applicant’s written objection is well founded and upheld.

3. The appeal is upheld.

4. Development Application 466/2014/DA-S for the subdivision of land legally known as Lot A, DP 449151, commonly known as 15 Aberfoyle Road, Wedderburn into two Torrens title allotments is approved subject to the conditions set out in ‘Annexure 1’.

………………………………

S Dixon

Senior Commissioner of the Court

Annexure 1 (88.2 KB, pdf)

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Amendments

10 December 2019 - Correction to typographical errors at [1] and [5].