Leader Commercial Pty Ltd v Tweed Shire Council

[2023] NSWLEC 1376

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leader Commercial Pty Ltd v Tweed Shire Council [2023] NSWLEC 1376

Hearing dates:

Conciliation conference held on 3 July 2021

Date of orders:

18 July 2023

Decision date:

18 July 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA21/0981, which as amended seeks construction of a depot and light industrial development on Lot 14 in Deposited Plan 830659, also known as 26-28 Naru Street, Chinderah is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – depot and industrial development – flooding – conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.20, 4.47, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.10, 4.18

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 4

Tweed Local Environmental Plan 2014, cll 2.3, 5.21, 7.6, 7.8, 7.10, 7.15

Texts Cited:

NSW Department of Planning and environment, “Apartment Design Guide”, July 2015

Tweed Development Control Plan 2008

Tweed Coast Comprehensive Koala Plan of Management 2020

Tweed Valley Floodplain Risk Management Study and Plan 2014

Category:

Principal judgment

Parties:

Leader Commercial Pty Ltd (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:
S Gadiel (Applicant)
S Patterson (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/250190

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA21/0981 (the DA) by Tweed Shire Council (the Council), which as amended, seeks construction of a depot and light industrial development on Lot 14 in Deposited Plan 830659, also known as 26-28 Naru Street, Chinderah (the site).

Background

2. The DA was lodged with Council on 7 December 2021. The original DA was notified to residents, with two submissions received. The key issues raised by residents in objection related to flooding.

3. The DA was referred to the relevant authorities, being Transport for NSW (TfNSW), Essential Energy, and Department of Planning and Environment- Office of Water (DPE), pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

5. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The applicant filed a Notice of Motion to amend the DA on 16 March 2023, which was granted leave by the Court on 23 March 2023.

6. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held in person.

7. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA21/0981, with conditions.

8. Pursuant to s 34(3) of the LEC Act, I must 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. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to relevant jurisdictional requirements, to grant consent to DA21/0981, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Biodiversity Conservation Act 2016 (BC Act):

1. The site is covered by native vegetation, of which less than 1 ha is proposed to be cleared. The amended DA is supported by a revised Biodiversity Development Assessment Report (BDAR) using the Biodiversity Assessment Method, and prepared by JWA Ecological Consultants, dated 23 February 2023. The amended DA seeks to avoid and mitigate impact to biodiversity values on the site by the location/design of services and earthworks, and adopts credit offsets to address any assessed loss. The BDAR assesses that there is no serious or irreversible impact to biodiversity values resulting from the proposed development.

2. Tweed Local Environmental Plan 2014 (TLEP):

1. Pursuant to cl 2.3 of the TLEP, the proposed residential development is situated over land zoned IN1 General Industrial. The proposed development, as described to the Court, is permissible with consent. The amended DA sufficiently addresses the relevant objectives, aims, standards and requirements of the TLEP, and specifically those relating to cll 5.21, 7. 6, 7.8, 7.10 and 7.15.

2. Specific to the contentions of Council and issues raised by objectors, I consider the following provisions of the TLEP:

1. Clause 5.21 of the TLEP is engaged because the site relates to land located with the flood planning area. The amended DA is supported by a Flood Impact Assessment Report, prepared by Burchills Engineering, dated 7 March 2023 and a Flood Response Assessment Plan, prepared by Burchells Engineering Solutions, dated 21 February 2023. The amended DA is designed to minimise offsite impact resulting from flooding, and the DA has had regard to the relevant requirements of cl 5.21 of the TLEP.

2. The site is underlain by shallow groundwater levels, which will be dewatered due to the proposed development. The DA is supported by a revised Dewatering Management Plan, prepared by HMC Environmental Consulting, dated 22 February 2023. The DPE have provided concurrence to the amended DA and the conditions of consent reflect their requirements. Clause 7.15 of the TLEP is addressed by the amended DA and by the agreed conditions of consent in Annexure A, that seek to minimise groundwater extraction.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is located within the area of the Tweed Coast Comprehensive Koala Plan of Management 2020 (the Koala Plan), thereby requiring consideration of Chapter 4 of the SEPP Biodiversity. The amended DA is supported by a Revised Koala Habitat and Activity Assessment, prepared by JWA Ecological Consultants, dated 23 February 2023 and a Koala Offset Management Plan, prepared by JWA Ecological Consultants, dated 15 March 2023. The amended DA is considered by Council to be consistent with the Council’s Koala Plan, pursuant to s 4.18(2) of the SEPP Biodiversity.

4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site has frontage to a classified road, therefore s 2.119 of the SEPP Infrastructure is engaged. The amended DA is supported by a Traffic Assessment, prepared by Geleon, dated 14 October 2021 and an Acoustic Report, prepared by CRG Acoustics, dated 15 February 2023. The amended DA seeks to provide access via a road other than the classified road, and is not considered sensitive to traffic noise or will create adverse road safety. The requirements of SEPP Infrastructure are addressed by the amended DA and the conditions of consent described in Annexure A.

5. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65):

1. As the DA relates to residential apartments, assessment of the amended application requires the relevant provisions of the SEPP 65 and the Apartment Design Guide to be considered, pursuant to cl 4. The amended DA is supported by a Design Verification Statement, as described in the conditions of consent, and this design has considered the amenity of residents.

6. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site is located on land mapped as being within the coastal environment area and coastal use area, thereby engaging ss 2.10 and 2.11 of the SEPP Resilience, respectively. The Statement of Environmental Effects (SEE), prepared by Zone Planning Group, dated November 2021 supports the DA. It is assessed that there is no adverse impact to the physical and cultural features associated with the site, and no change to coastal hazards on the site.

2. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. The site is currently undeveloped, covered in vegetation, which is confirmed by Council and in the SEE. Council has appropriately considered the contamination status of the site, which satisfies the relevant requirements of s 4.6 of the SEPP Resilience. The conditions of consent address any unexpected finds.

7. Tweed Development Control Plan 2008 (TDCP):

1. The original and amended DA were publicly notified in accordance with the TDCP, with two submissions received for each notification period. The relevant requirements of the TDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and the conditions of consent.

2. The Council advises that the issues raised by resident objectors, specifically relating to flooding, have been considered in the amended design, and specifically of the earthworks. There is no assessed adverse offsite flood impact resulting from the proposed development.

10. The site is mapped as bushfire prone, however due to the industrial nature of the proposed development, a bushfire safety authority is not required, pursuant to s 100B of the Rural Fires Act 1997. The amended DA is supported by a Bushfire Assessment report, prepared by Bushfire Certifiers, dated 6 March 2023. The design of the proposed building has considered the Planning for Bushfire Protection 2019 and there is an asset protection zone around the building, having regard to the assessed bushfire risk. The requirements of s 4.14 of the EPA Act have been sufficiently addressed.

11. Pursuant to cl 49 of the EPA Reg, the DA has satisfied the Court with the provision of consent from relevant landowners.

Grant of consent

12. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

13. The Council has undertaken the appropriate merit assessment of the proposed development and considered the issues raised by adjoining properties. The Court is advised that the issues raised in contention have been addressed by the amendments made to the DA.

14. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA21/0981 can be determined by granted of consent.

15. 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.

16. The Court notes that:

1. The amended development application was filed with the Court on 16 March 2023 and was granted leave to amend the DA on 23 March 2023.

2. The Tweed Shire Council will register the development consent on the NSW Planning Portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of determination

17. The Court orders that:

1. The appeal is upheld.

2. Development Application DA21/0981, which as amended seeks construction of a depot and light industrial development on Lot 14 in Deposited Plan 830659, also known as 26-28 Naru Street, Chinderah is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 18 July 2023