Knox v Wingecarribee Shire Council

[2023] NSWLEC 1527

Land and Environment Court

New South Wales

Medium Neutral Citation:

Knox v Wingecarribee Shire Council [2023] NSWLEC 1527

Hearing dates:

Conciliation conference on 22 August 2023

Date of orders:

14 September 2023

Decision date:

14 September 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in the index at Annexure A.

(2) The Appeal is upheld.

(3) Development consent is granted to DA No. 23/0735 for residential subdivision into three lots at 160 Old South Road, Bowral, being Lot 7 in DP786212, subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPEAL – residential subdivision - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.5, ss 6.6,6.7, 6.8, 6.9

Wingecarribee Local Environmental Plan 2010, cll 4.1, 7.10

Category:

Principal judgment

Parties:

Jeff Knox (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
T Messenger (solicitor) (Applicant)
J King (solicitor) (Respondent)

Solicitors:
Messenger & Messenger (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/90857

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Wingecarribee Shire Council (the Council) of DA/327/2020 (the Development Application) for a three lot subdivision of land zoned R2 Residential (the Proposed Development) at 160 Old South Road, Bowral known as Lot 7 DP786212 (the Site).

2. 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 at Court. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The Council agreed that the amendment was minor and did not trigger an order for costs. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the three lot subdivision of the land with conditions.

4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement filed on 28 August 2023. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

6. I am satisfied in regard to all the jurisdictional requirements set out in detail in the parties agreed Statement and note the following matters that are particularly applicable and of interest to the proposed subdivision development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

7. The Site is located within the Sydney Drinking Water Catchment such that Pt 6.5 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies. The Sydney Drinking Water Catchment is a regulated catchment for the purposes of Ch 6 of the Biodiversity SEPP.

8. The Council has considered the mandatory matters for consideration under ss 6.6(2), 6.7(1), 6.8(1) and 6.9(1) of the SEPP and is of the view that the development is acceptable having regard to those considerations.

9. Section 6.6(2)(b) provides that development consent must not be granted unless the consent authority is satisfied that the development ensures that the impact on water flow in a natural waterbody will be minimised. The parties’ experts are satisfied on the basis of the WaterNSW concurrence and the engineering plans that the impact on water flow in a relevant natural waterbody will be minimised.

10. The parties experts are also satisfied that s 6.7(2) requirements regarding the potential impact on wetlands, animals or vegetation, and aquatic reserves are met because the impact on water quality from the development will be neutral or beneficial.

11. The Application was referred to WaterNSW on 19 January 2023 pursuant to s 6.64 of the Biodiversity SEPP. On 16 August 2023, WaterNSW advised that it was “satisfied future proposed developments can achieve a neutral or beneficial effect (NorBE) on water quality provided appropriate conditions are included in any development consent and are subsequently implemented” and provided its concurrence.

12. Conditions prepared by WaterNSW have been included in the conditions of consent for the development.

13. Engineering plans have been provided as part of the conciliation process which include provision of a 13sqm bio retention basin to treat the proposed shared driveway as well as to include an erosion and sediment control plan.

14. Model for Urban Stormwater Improvement Conceptualisation (MUSIC) modelling has also been undertaken to satisfy the NorBE requirements. Council officers have reviewed that MUSIC modelling and are satisfied that the requirements have been met.

15. On the basis of the above matters, Council is satisfied that NorBE will be achieved in this development and that the development is consistent with the WaterNSW Neutral or Beneficial Effect on Water Quality Assessment Guideline 2022.

Wingecarribee Local Environmental Plan 2010 (WLEP)

16. The Site is zoned R2 – Low Density Residential under the Wingecarribee Local Environmental Plan 2010 (WLEP) and subdivision is permissible with consent. The proposed subdivision is consistent with and meets the R2 zone objectives. The three lots proposed comply with the minimum lot size under cl 4.1 of the WLEP of 1000 sqm.

17. Council is satisfied under cl 7.10 of WLEP that any public utility infrastructure that is essential for the proposed subdivision is available or will be when it is required.

18. The Bowral St Subdivision Pressure Sewer System Design Summary Report (Rev 3, June 2023) included with the amendments as part of the conciliation conference process has demonstrated how the Site will connect to Council’s existing DN50 low pressure sewer within Wycliffe Place.

19. The Application also proposes two new water services to provide reticulated water supply to proposed lots 202 and 203.

20. Conclusion

21. For these reasons and based on the evidence before me, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

22. 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. 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.

Notations

23. The Court notes:

1. Wingecarribee Shire Council, as the relevant consent authority has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application No 23/0735 in accordance with the plans and documents specified in the index at Annexure A.

Orders

The Court orders that:

1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in the index at Annexure A.

2. The Appeal is upheld.

3. Development consent is granted to Development Application No. 23/0735 for the residential subdivision into three lots at 160 Old South Road, Bowral, being Lot 7 in DP786212, subject to the conditions in Annexure B.

L Byrne

Acting Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 14 September 2023