Lee v Wingecarribee Shire Council

[2023] NSWLEC 1788

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lee v Wingecarribee Shire Council [2023] NSWLEC 1788

Hearing dates:

Conciliation conference on 5 December 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA22/0890 for subdivision of one lot into six lots with associated civil works at 267 Bundanoon Road, Exeter is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision of land and civil works in RU4 Primary Production Small Lots – conciliation conference – agreement between parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.12, 7.13, 7.16

Biodiversity Conservation Regulation 2017, cll 7.1, 7.2

Conveyancing Act 1919, s 88B

Environmental Planning and Assessment Act 1979, ss 4.46, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Environment Protection and Biodiversity Conservation Act 1999

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

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

State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 11

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

Wingecarribee Local Environmental Plan 2010, cll 4.1, 5.16, 7.3, 7.5, 7.10

Texts Cited:

NSW Rural Fire Services, Planning for Bushfire Protection, November 2019

Wingecarribee Community Participation Plan

Category:

Principal judgment

Parties:

Scott Lee (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
L Sims (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2022/379699

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A 91 hectare property known as ‘Mittabah’ is located on the eastern side Bundanoon Road, around 4km north east of the township of Bundanoon in the Southern Highlands.

2. The entrance to the property is at a sharp bend in Bundanoon Road, from which the site is accessed via a short length of dirt road within the road reserve.

3. Development Application DA22/0890 (the DA) was lodged with Wingecarribee Shire Council, the Respondent, on 15 November 2021 with the written consent of the owner of the land, in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.

4. The DA proposes Torrens title subdivision of the property from one lot into six lots, with associated civil works in the form of an access road and stormwater drainage.

5. The DA was notified between 7 December 2021 to 17 January 2022, in accordance with the relevant Wingecarribee Community Participation Plan.

6. Having not been otherwise determined, the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction on 16 December 2022.

7. The Court arranged a conciliation conference between the parties on 23 May 2023 at which I presided. The parties did not reach in principle agreement and the conciliation was subsequently terminated. However, the parties later consented to me hearing the matter.

8. At the commencement of the hearing, the parties advised the Court that, as a result of joint expert conferencing, the matters in dispute were resolved, and parties sought the matter to be re-allocated for conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act).

9. Prior to the re-allocation of the matter, the Court was assisted by the tendering of joint expert reports, amended plans and other documents that parties rely on in reaching in-principle agreement.

10. The Respondent agreed to the amending of the application by the Applicant, in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), by relying upon the following amended plans and other documents listed at [51(1)] (the Amended DA).

11. The Court also heard an oral submission from a resident of 269 Bundanoon Road who expressed concern at what was described as the excessive overdevelopment of the site, with implications for traffic, noise and privacy, and bushfire risk.

12. On the basis of those amended plans and documents at [10], and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties.

13. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 5 December 2023.

14. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

15. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the following environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [52]:

• Wingecarribee Local Environmental Plan 2010

• Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulations 2017

• State Environmental Planning Policy (Biodiversity and Conservation) 2021

• State Environmental Planning Policy (Koala Habitat Protection) 2021

• Rural Fires Act 1997

• State Environmental Planning Policy (Resilience and Hazards) 2021

• Environmental Planning and Assessment Regulation 2021

16. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met for the reasons that follow.

Wingecarribee Local Environmental Plan 2010

17. The site, legally described as Lot 2 in DP 1275829, is located with the RU4 Primary Production Small Lots zone, according to the Wingecarribee Local Environmental Plan 2010 (WLEP), in which the development the subject of the development application is permitted with consent, where consistent with the objectives of the RU4 zone.

18. The objectives of the RU4 zone are as follows:

•  To enable sustainable primary industry and other compatible land uses.

•  To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To provide for a restricted range of employment-generating development opportunities that are compatible with adjacent or nearby residential and agricultural development.

•  To avoid additional degradation or fragmentation of the natural environment caused by further clearing of native vegetation, high intensity development and land use.

•  To maintain flora and fauna species and habitats, communities and ecological processes that occupy land in the zone, ensuring that development minimises any off and on site impacts on biodiversity, water resources and natural landforms.

•  To conserve and enhance the quality of potentially valuable environmental assets, including waterways, riparian land, wetlands and other surface and groundwater resources, remnant native vegetation and fauna movement corridors as part of all new development and land use.

•  To provide for the effective management of remnant native vegetation within the zone, including native vegetation regeneration, noxious and environmental weed eradication and bush fire hazard reduction.

19. According to the relevant Lot Size Map at cl 4.1(2) of the WLEP, a minimum lot size of 8 hectares applies in the vicinity of the site. The Statement of Environmental Effects (Exhibit A, Tab 3) that accompanies the Amended DA states the proposed lot sizes as follows:

• Lot 1: 9.3 hectares

• Lot 2: 8.10 hectares

• Lot 3: 9.71 hectares

• Lot 4: 8.79 hectares

• Lot 5: 8.04 hectares

• Lot 6: 45.58 hectares

20. As the proposed subdivision of land for the purposes of a dwelling is permitted with consent in the RU4 zone, and envisaged by cl 5.16(3) of the WLEP, I accept that the proposal does not give rise to a significant impact on land uses when existing and approved uses in the vicinity of the development are taken into account, and so should not result in an incompatibility, pursuant to cl 5.16(4) of the WLEP.

21. The construction of the proposed access road on the site requires earthworks that are documented in the Plan of Proposed Subdivision prepared by Civil Development Solutions (Exhibit C). I have considered those matters required to be considered at cl 7.3(3) of the WLEP and conclude, on the basis of the cross sections of the driveway, at Sheet Nos 12-15, 19-28, 31-36 and 38, and the Drainage Profile Lines, Details of Bio-Retention basins and water quality ponds at Sheets 40-45, that those matters at cl 7.3(3) are adequately addressed.

22. The site is identified on the Natural Resources Sensitivity Map at cl 7.5(2) of the WLEP. As such, consideration must be given to those matters at cl 7.5(3) of the WLEP so as to form an opinion of satisfaction of a kind required by cl 7.5(4) of the WLEP. I note the stormwater experts agree that the water quality modelling demonstrates that the proposal will achieve a neutral or beneficial effect when compared with pre-development water quality runoff. I also note the General Terms of Approval provided by Water NSW (Exhibit J) which cite eight biofiltration areas and seven water quality ponds, designed to manage stormwater run off, and for which adequate buffers are provided in the Amended DA. Accordingly, I consider water quality of this standard sufficient to avoid any potential adverse environmental impact on the water quality of receiving waters in the vicinity of the site.

23. As the proposal is for the subdivision of land, and civil works to provide road access, I am satisfied that sufficient public utility infrastructure is available to the site for the development the subject of the development application, pursuant to cl 7.10 of the WLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. Chapter 8 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies by virtue of the savings provision at s 6.65, and because the site is located within the Sydney drinking water catchment.

25. For the reasons stated at [22], I am satisfied that the proposed development will have a neutral or beneficial effect on water quality in accordance with s 8.8 of the Biodiversity SEPP, which is a conclusion also reached by Water NSW (Exhibit J).

26. The General Terms of Approval provided by Water NSW are in accordance with s 8.9 of the Biodiversity SEPP, and are incorporated in agreed conditions of consent.

Biodiversity is considered

27. As the proposed development includes the clearing of natural vegetation identified on the Sensitive Biodiversity Values Map, the Amended DA is accompanied by a Biodiversity Development Assessment Report (BDAR) prepared by Fraser Ecological dated 21 August 2023 (Exhibit B, Tab I).

28. The BDAR states the proposed development involves the clearing of vegetation of 0.5 hectares, exceeding the area of land declared by cl 7.2 of the Biodiversity Conservation Regulation 2017 (Biodiversity Regulation) to exceed the biodiversity offset scheme threshold.

29. As the proposed development involves the subdivision of land, the clearing of land to be taken into account is that clearing required or likely to be required for the purposes for which the land is to be subdivided, in accordance with cl 7.1(3) of the Biodiversity Regulation.

30. The BDAR identifies the following plant community types on the site:

1. Robertson Basalt Tall Open Forest (RBTOF), listed as a Critically Endangered Ecological Community (CEEC) under the Biodiversity Conservation Act 2016 (Biodiversity Conservation Act)

2. Upland Basalt Eucalypt Forest, listed as an endangered ecological community (EEC) under the Environment Protection and Biodiversity Conservation Act 1999.

3. Southern Highlands Shale Woodland, listed as an EEC under the Biodiversity Conservation Act

4. Southern Highlands Shale Forest and Woodland, listed as a CEEC under the EPBC Act

5. Shoalhaven Escarpment Peppermint, Silvertop Ash Forest

31. Additionally, the BDAR appends the following assessments in respect of fauna:

1. the Broad-headed snake, Watson’s Tree Frog, Giant Burrowing Frog, and the Southern Stuttering Frog (Appendix E)

2. Koala Assessment (Appendix G)

32. Section 7.12 of the Biodiversity Conservation Act precludes the grant of consent where development is likely to significantly affect threatened species, other than in circumstances where the application for development is accompanied by a BDAR, and where the conditions of consent require the Applicant to retire biodiversity credits, consistent with s 7.13(3) of the Biodiversity Conservation Act.

33. The parties have agreed conditions of consent that provide for the registration of an instrument in accordance with s 88B of the Conveyancing Act 1919 that imposes, at Condition 15, a requirement on lots to implement recommendations contained in a Wildlife Management Plan, in a manner consistent with a Koala Plan of Management.

34. The agreed conditions of consent also require, at Condition 17, the Applicant to retire biodiversity credits to offset the residual biodiversity impacts of the development in accordance with the BDAR.

35. Section 7.16 of the Biodiversity Conservation Act requires the Court to refuse to grant consent to the development application if it is of the opinion that the development is likely to have “serious and irreversible impacts on biodiversity values”.

36. The BDAR considers the likelihood of serious and irreversible impacts on the RBTOF at Section 6.4, and by reference to Table 18. Additionally, the Arboricultural Impact Assessment and Management Plan (Exhibit E) identifies nine native trees for removal, and for which compensatory re-vegetation is documented in Appendix D.

37. On the basis of the above, I accept the agreed position of the parties that the development will not have serious and irreversible impacts on the biodiversity values of the site.

State Environmental Planning Policy (Koala Habitat Protection) 2021

38. The Koala Assessment identifies that Koala food trees constitute more than 15% of the upper and lower canopy on the site, deeming the site potential Koala Habitat for the purposes of s 11(2) of State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP) that was in force at the time the development application was lodged. Further assessment determined the cleared areas of the site are not core Koala habitat and that the development avoids the direct loss of core koala habitat.

39. The Koala Assessment proposes measures to improve potential koala habitat such as removing noxious and environmental weeds, and regeneration of degraded areas after weed removal and road construction that are said to improve potential koala habitat and linkages for koalas and other native fauna.

40. The Amended DA proposes the removal of nine trees, identified at Appendix F of the Arboricultural Impact Assessment and Management Plan, prepared by George Palmer of Botanics Pty Ltd dated November 2023 (Exhibit E) that in turn relies upon a Tree Inventory compiled by Dr Matthew Lawrence which documents the location and species of 224 trees on the site. The trees to be removed include Tree 160, identified as a Narrow Leaved Peppermint that is listed as a Koala Use Tree, and assessed as being in poor health.

41. Where there is no approved koala plan of management in place on the site, as is the case here, cl 11 of the Koala SEPP provides for development consent, subject to assessing whether the development is likely to have any impact on koala habitat, and, at subcl (3), satisfaction that the development is likely to have low or no impact on koalas or koala habitat.

42. On the basis of the Koala Assessment, I am satisfied the development is likely to have low or no impact on koalas or koala habitat.

Rural Fires Act 1997

43. The site is bushfire prone land, and the proposed development requires a Bush Fire Safety Authority. As such, the proposed development is considered integrated development pursuant to s 4.46 of the EPA Act.

44. A Bushfire Hazard Assessment, prepared by Harris Environmental dated 2 June 2023 (Exhibit B, Tab M) sets out, at Section 7, the means by which the proposal does, or proposes to, demonstrate compliance which is deemed to satisfy provisions at Chapter 5 of the Planning for Bush Fire Protection 2019 (PBP).

45. A Bushfire Management Plan by the same author (Exhibit B, Tab N) contains recommendations that are required to be implemented by Condition 35 of the agreed conditions of consent.

46. The bushfire experts set out the reasons for their agreement in respect of all contentions in the joint expert report (Exhibit 2) by reference to the Bushfire Assessment and the Bushfire Safety Authority issued by the Rural Fire Service (RFS) (Exhibit B, Tab L) in accordance with s 100B of the Rural Fires Act 1997, subject to the general terms of approval that are incorporated into the agreed conditions of consent.

47. The experts also agree that a positive covenant pursuant to s 88B of the Conveyancing Act 1919 assists in achieving the general terms of approval granted by the RFS to burden the owner of the proposed lots to ensure there is suitable access and turn around area for a Category 1 fire appliance within asset protection zones. A condition to this effect is incorporated in agreed conditions of consent at Condition 44.

State Environmental Planning Policy (Resilience and Hazards) 2021

48. The parties agree the proposal does not involve a change of use, but is for the purpose of subdivision to facilitate residential use. I accept the site is suitable for the purpose for which the development is proposed to be carried out, being a six lot subdivision and civil works, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

49. 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)).

50. 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.

Stamped Plans/Documents	Prepared By	Issue	Drawing No.	Dated
Plan of Proposed Subdivision	Civil Development Solutions	B	2123 CE05 Sheets 1-53	02/11/2023
Plan of Proposed Subdivision with music model catchments	Civil Development Solutions	B	2123 CE05 Sheets M1-M7	02/11/2023
Arboricultural Impact Assessment and Management Plan	George Palmer Botanics	November 2023
Existing and Proposed Signage and Line Marking Concept Layout	CJP Consulting Engineers	22071-D01-V8 Sheet 1	24/10/2023
Swept Path Assessment	CJP Consulting Engineers	22071-D01-V8 Sheet 2-7	24/10/2023

51. The Court notes that:

1. The Respondent, Wingecarribee Shire Council, as the relevant consent authority, has approved under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA22/0890 to rely on the documents listed below:

2. the Applicant filed the plans and documents referred at [51(1)] on 5 December 2023.

Orders

52. The Court orders that:

1. The appeal is upheld.

2. Development Application DA22/0890 for subdivision of one lot into six lots with associated civil works at 267 Bundanoon Road, Exeter is determined by the grant of consent subject to conditions contained in Annexure A.

T Horton

Commissioner of the Court

Annexure A

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Decision last updated: 22 December 2023