Leda Manorstead Pty Ltd v Minister for Planning

[2019] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:	Leda Manorstead Pty Ltd v Minister for Planning [2019] NSWLEC 1342
Hearing dates:	Conciliation conference on 18 July 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The Court is satisfied that the requested modification falls within the scope of former section 75W of the Environmental Planning and Assessment Act 1979, as continued in force by clause 3C of Schedule 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017. (2)   The appeal is upheld. (3)   The requested modification ('MOD 9') lodged by the Applicant on 3 July 2017 to modify concept plan approval MP06_0316 is determined by approving the modification set out in the Annexure.
Catchwords:	MODIFICATION – development consent – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Leda Manorstead Pty Ltd (Applicant) Minister for Planning (Respondent)
Representation:	Solicitors: A Gadiel, Mills Oakley (Applicant) K Smith, Crown Solicitor’s Office (NSW) (Respondent)
File Number(s):	2018/206081
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant seeks approval to modify the concept plan approval MP06 _0316 for Cobaki Lakes. The approval was given under the former Part 3A provisions of the Environmental Planning and Assessment Act 1979 (EPA Act) and this modification request (“MOD 9”) is made pursuant to s 75W of the EPA Act as continued by cl 3(1) of Schedule 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017.

2. The background to this modification proposal is detailed in the affidavit of Sophie Elizabeth Volk dated 12 July 2018 filed on behalf of the applicant. It records the concept plan approval envisaged that 15.3 hectares of “Swamp Sclerophyll Forest on Coastal Floodplain” (SSF) would be retained on site as an offset (for cleared vegetation). However, subsequent to that the Tweed Shire Council decided that it did not want offsets within the central drainage reserves.

3. As a result, on 29 May 2013, the Minister approved changes to the concept plan approval to reduce the on-site offset for SSF to 6.77 hectares (Mod 1), in accordance with the 2013 report; and, require that there be additional lands made available to compensate for the loss of the originally envisaged offset. The Mod 1 changes also made some other adjustments to the following offsets on the on-site:

1. lowland rainforest on floodplain (LRF) to be adjusted from 5.06 hectares to 9.59 hectares; and

2. lowland rainforest (LR) to be adjusted from 7.06 hectares to 3.71 hectares.

4. These calculations were based on aerial photography (and like information) appropriate to a concept level analysis without the benefit of surveys.

5. Subsequent more detailed work has revealed that the earlier concept level analysis did not adequately deal with:

1. drains;

2. bio-retention basins; and

3. roundabouts (and other infrastructure at intersections) within Cobaki parkway.

6. Therefore, if the intended residential areas are to be accommodated there needs to be the following further adjustments:

1. the combined offset (which is entirely on site) for LRF and LR must be reduced by 0.34 hectares to 12.96 hectares; and

2. the 6.77 hectare onsite offset for SSF must be reduced by 1.46 hectares to 5.31 hectares.

7. The Council’s development consent granted on 29 June 2016 authorised the carrying out of bulk earthworks in part of the land covered by the concept plan approval, being precincts 6-12. However, before a construction certificate can be issued for these bulk earthworks, condition 31 of the consent requires that a site-wide review of onsite endangered ecological community (EEC) offset commitments is to be prepared to the satisfaction of the Council, along with a revised offset package of the approved offsets that are no longer able to be met.

8. When the applicant raised with the Council the need to decrease the onsite offsets for SSF, LRF and LR, the Council did not agree. As a result, on 3 July 2017 the applicant lodged this modification request with the Department of Planning and Environment. The modification seeks to modify the offsets to be onsite in line with the numbers earlier identified, namely:

1. LRF and LR at 12.96 hectares ; and

2. SSF at 5.31 hectares.

9. The combined proposed offset for SSF would then be 14 hectares.

10. Following relevant consultations with the Office of Environment and Heritage and various peer reviews, the appropriate credit retirement was assessed at 192 SSF – which is 159 credits once it recognised that 5.31 hectares will be retained onsite.

11. On 6 March 2018, the Department prepared an assessment report for the Independent Planning Commission, as delegate of the Minister, recommending approval of the modification subject to the retirement of 159 “Swamp sclerophyll forest on coastal floodplain” (SSF) EEC credits.

12. On 5 April 2018, the Commission rejected the recommendation of Department and refused MOD 9.

13. This Class 1 appeal was lodged on 4 April 2018. On 5 July 2018, the applicant filed a Motion to amend C19 of the concept plan approval and rely on additional documentation. The Court granted the amendment on 24 July 2018. Read with the original modification application, as set out in the letter from the applicant to the Minister dated 3 July 2017 (being Annexure 2 of the Class 1 application filed with the Court on 4 July 2018) the proposal which I am being asked to approve is:

1. Modify condition C19(2) and Statement of Commitments 4.8.2 and

2. Replace the report Revised Site Remediation and Revegetation plan (JWA April 2013) with a report Revised Site regeneration and Revegetation Plan (JWA 2017).

14. The agreed terms of the decision incorporate Annexure A. These terms are the varying or revocation of the following conditions of approval:

1. Schedule 2 Part A – Administrative Conditions, condition A2;

2. Schedule 2 Part C – Requirements for Future Applications, condition C19; and

3. Schedule 3 commitment 4.8.2.

15. The applicant also seeks to change the terms of the concept approval:

1. The inclusion of Plan No: 97038 _EA.

16. In an effort to resolve the proceedings, 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 over several days. On 18 July 2019, I presided over the conciliation conference.

17. At that time, the parties had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting the requested modification lodged by the applicant on 3 July 2017 as set out in the Annexure to the agreement.

18. 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 75W of the EPA Act to grant consent to the application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings to be modification within the scope of s 75W and I am satisfied of that fact based on the agreed written submission provided to me by the parties at the conference dated 17 July 2019.

19. 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.

20. The Court orders:

1. The Court is satisfied that the requested modification falls within the scope of former section 75W of the Environmental Planning and Assessment Act 1979, as continued in force by clause 3C of Schedule 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017.

2. The appeal is upheld.

3. The requested modification ('MOD 9') lodged by the Applicant on 3 July 2017 to modify concept plan approval MP06_0316 is determined by approving the modification set out in the Annexure.

……………………………

S Dixon

Senior Commissioner of the Court

Annexure (26.5 KB)

Plan (414 KB)

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Decision last updated: 24 July 2019