Landmark Group NSW Pty Ltd v Goulburn Mulwaree Council

[2023] NSWLEC 1680

Land and Environment Court

New South Wales

Medium Neutral Citation:

Landmark Group NSW Pty Ltd v Goulburn Mulwaree Council [2023] NSWLEC 1680

Hearing dates:

Conciliation conference on 9 November 2023

Date of orders:

10 November 2023

Decision date:

10 November 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) Development Application No. DA0099/2122, lodged with the Respondent on 19 August 2021, and as amended, being for the demolition and construction of 26 dwellings and a 29 Lot Community Title Subdivision under the Goulburn Mulwaree Local Environmental Plan 2009, at Lot 1 DP1099324, known as 30a Sloane Street, Goulburn NSW, is granted subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – multi dwelling housing and community title subdivision – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 55, 92, 98, Pt 6 Div 8A, Sch 1

Goulburn Mulwaree Local Environmental Plan 2009, cll 2.6, 4.1, 4.1A, 4.1B, 7.1A

Interpretation Act 1987 s 30A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 2.4, 6.65, 8.8, 8.9, Ch 8

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Texts Cited:

NSW Department of Planning Low Rise Housing Diversity Design Guide for Development Applications (July 2020)

Category:

Principal judgment

Parties:

Landmark Group NSW Pty Ltd (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
M Seymour SC (Applicant)
J Walker (Respondent)

Solicitors:
Project Lawyers (Applicant)
Maddocks (Respondent)

File Number(s):

2022/356341

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: Sloane Street, in Goulburn, runs parallel to the railway line and in a north-south direction from Goulburn town centre in the north, through a residential area and to an industrial and agricultural area in the south. Along Sloane Street there remain some large rural lots accessed from laneways from Sloane Street which are appropriate for development for residential subdivision. One such lot is 30A Sloane Street, where Landmark Group NSW Pty Ltd (Landmark) seeks development consent for an integrated housing development with community title subdivision to create 24 lots and 29 dwellings. It lodged a development application with Goulburn Mulwaree Council on 19 August 2021, which was refused on 21 December 2021. Landmark appeals against that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The hearing of the appeal commenced on 10 October 2023 following a site inspection on 9 October 2023, and was adjourned to 11 October 2023 and again to 9 November 2023. On 9 November 2023, during an adjournment of the hearing, 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 on the same date. I presided over the conciliation conference.

3. At the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement provided on the same date, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amendments resolve some inconsistencies that previously existed in the plans concerning the garage length, and also provided details of the location of the rainwater tanks. The development application, as amended, includes the demolition of identified structures, tree removal, retention of the existing dwelling and construction of 26 dwellings and ancillary works including a 29-lot community title subdivision.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement (together with an Addendum to that statement) that sets out the jurisdictional matters that must be satisfied before the Court can grant development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert reports filed in the proceedings, the statement of evidence of Mr El Haddad filed 8 November 2023, the assessment report dated 18 September 2021, and the documents that are referred to in Section A condition 2. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The proposed development is for the purpose of multi dwelling housing, which is permissible with development consent in the R1 General Residential zone in which the site is located, pursuant to the Goulburn Mulwaree Local Environmental Plan 2009 (GMLEP), and the subdivision of land is similarly permissible pursuant to cl 2.6 of the GMLEP.

• There are no development standards that apply to the site concerning floor space ratio or height of buildings, and pursuant to cl 4.1A of the GMLEP, community title subdivision is exempt from the minimum subdivision lot size development standard in cl 4.1.

• The proposed development complies with the development standard for the minimum lot size for the carrying out of multi dwelling housing development, pursuant to cl 4.1B of the GMLEP.

• The development application includes earthworks for the construction of the dwellings and the road. Based on the civil and stormwater plans and the Statement of Environmental Effects dated 4 August 2023, I have considered the matters set out in cl 7.1A(3) of the GMLEP.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The site is located within the area identified as the Sydney Drinking Water Catchment pursuant to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). Pursuant to s 6.65 of the SEPP B&C, the repealed Ch 8 of the SEPP B&C continues to apply to the proposed development, and are considered as transferred provisions pursuant to s 2.4 of the SEPP B&C and s 30A of the Interpretation Act 1987. In relation to Ch 8 of SEPP B&C, I am satisfied that the carrying out of the proposed development will have a neutral or beneficial effect on water quality, as required by s 8.8(1), based on the statement of evidence of Mr El Haddad and the concurrence of Water NSW. Water NSW has granted their concurrence in accordance with s 8.9(1) of the SEPP B&C, and the conditions have been incorporated into the agreed conditions of consent.

• The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• Clause 92 of the EPA Regulation 2000 requires consideration of the NSW Department of Planning Low Rise Housing Diversity Design Guide for Development Applications dated July 2020 in certain circumstances. Whilst there is a dispute between the parties about whether those circumstances arise, insofar as the guidelines are required to be considered, I have considered them based on the joint reports of the town planners dated 20 September 2023 and 10 October 2023.

• The matters required to be considered by cl 98 and Part 6 Div 8A of the EPA Regulation 2000 are addressed through the conditions of consent.

• The development application was notified between 17 September 2021 and 12 October 2021, and four submissions were received in response. I have considered the issues raised in those submissions.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA0099/2122, lodged with the Respondent on 19 August 2021, and as amended, being for the demolition and construction of 26 dwellings and a 29 Lot Community Title Subdivision under the Goulburn Mulwaree Local Environmental Plan 2009, at Lot 1 DP1099324, known as 30a Sloane Street, Goulburn NSW, is granted subject to the conditions in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (615382, pdf)

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Decision last updated: 10 November 2023