Legpro 70 Pty Ltd atf Legpro Unit Trust v Wollongong City Council

[2024] NSWLEC 1448

Land and Environment Court

New South Wales

Medium Neutral Citation:

Legpro 70 Pty Ltd atf Legpro Unit Trust v Wollongong City Council [2024] NSWLEC 1448

Hearing dates:

Conciliation conferences on 6 June, 20 June, 27 June 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA-2023/166, as amended, for bulk earthworks, tree removal, vegetation management and ancillary works at 27 Railway Street, Corrimal NSW 2518 is determined by the grant of development consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – earthworks – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Heritage Act 1977, ss 60, 140

Land and Environment Court Act 1979, s 34

Water Management Act 2000

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.9, Ch 4

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 2.12, 4.6, Ch 2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.97, 2.99

Wollongong Local Environmental Plan 2009, cll 2.3, 5.1A, 5.10, 5.21, 7.5, 7.6

Category:

Principal judgment

Parties:

Legpro 70 Pty Ltd ATF Legpro Unit Trust (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
C Collett (Solicitor) (Applicant)
H Irish (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2023/447943

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of DA-2023/166 for bulk earthworks, tree removal, vegetation management and ancillary works (DA) at the former Corrimal Coke Works site located 27 Railway Street Corrimal, legally known as Lot 1 DP795791, Lot 5 DP 749492, Lot 126 DP 598190 and Lot 11 DP749492 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 June 2024. Subsequent conciliations were held on 20 June 2024 and 27 June 2024. I have presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA-2023/166 in accordance with the documents listed at [26] (amended DA). The changes included an updated remediation plan, approvals received under the Heritage Act 1997 and further information on the architectural plans.

4. As part of the conciliation conference process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended DA subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. The DA was lodged on 2 March 2023. I am satisfied that owner’s consent accompanied the DA as required by s 23 of the EPA Reg. The Respondent notified the DA between 5 April 2023 and 5 May 2023. 102 submissions were received with 99 in support and three objecting to the DA.

10. The Court and parties had the benefit of hearing oral submissions on the day of the s 34 conciliation conference. As agreement has been reached, the parties have considered the issues raised in the submissions.

Water Management Act 2000

11. The DA was not nominated as integrated development on the DA form. However, General Terms of Approval have been issued by the Department of Planning and Environment and these have been included in the conditions of consent at Annexure A.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies in relation to koala habitat protection. I accept the parties’ agreement that the site does not contain any core koala habitat and the provisions of s 4.9 have been adequately addressed.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Chapter 2, ss 2.11 and 2.12 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) in relation to coastal management applies to the site which is mapped within the coastal environment area. I accept the parties’ agreement that the provisions are satisfied as the site is not affected by coastal hazards, Coastal Management Plan or Coastal Management Plan as set out in the jurisdictional statement.

14. The provisions of s 4.6 of SEPP RH apply to the site. The site has a history of contamination associated with the previous use of the site for the production of metallurgical and foundry coke using a non-regenerative process (set out in the jurisdictional statement at [41]). The amended DA is supported by a Detailed Site Investigation Report, Remediation and Waste Management Strategy and Remediation Action Plan all prepared by Reditus Consulting that find that the site can be made suitable. The parties agree and I accept, that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

15. Sections 2.97 and 2.99 apply to the amended DA which seeks access via a level crossing and excavation within a rail corridor. The parties submit that TfNSW have issued their concurrence. Conditions of consent in relation to TfNSW requirements have been included at Annexure A. I accept the parties’ agreement that the provisions are met.

Wollongong Local Environmental Plan 2009

16. The subject site is zoned part R3 Medium Density Residential and part RE1 Public Recreation. The proposed development is confined to the R3 zone and is permissible with consent. Pursuant to cl 2.3 of the Wollongong Local Environmental Plan 2009 (WLEP), I have had regard to the objectives of the zone.

17. Clause 5.1A development on land intended to be acquired for a public purpose applies as the site contains land on the associated land reservation map. The amended DA does not propose any works on that part of the site.

18. Clause 5.10 heritage conservation applies to the site. The site is a local heritage item (Former Corrimal Coke Works, Item No. 6607). The site is also listed on the State Heritage Register. Approvals granted under s 60 and s 140 of the Heritage Act 1977 form part of the amended DA.

19. The amended DA is also accompanied by a Heritage Impact Statement prepared by Urbis dated 22 November 2022, Historical Archaeological Impact Assessment prepared by Urbis dated 9 August 2023, Aboriginal Cultural Heritage Assessment prepared by Kelleher Nightingale Consulting Pty Ltd dated 20 September 2023 and Archaeology Progress Statement prepared by Urbis dated 20 May 2024. I accept that the parties have adequately considered the provisions of cl 5.10.

20. Clause 5.21 flood planning applies to the site. On the basis of the Flood Statement prepared by Reditus Consulting dated 29 November 2022, I accept the parties’ agreement that the provisions are satisfied.

21. Clause 7.5 acid sulfate soils applies to the site as it is affected by class 5 soils. I accept the parties’ agreement that the proposed works will not lower the water table below 1m ADH and an acid sulfate soils management plan is not required.

22. Clause 7.6 Earthworks applies to the amended DA. The proposed development is primarily for earthworks. With consideration of the documentation within the Class 1 appeal and amended DA, I accept the parties’ agreement that the provisions have been adequately considered.

Conclusion

23. 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.

24. 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.

25. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Notations

26. The Court notes that the Respondent has agreed, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-2023/166 to rely upon the following amended plans and documents:

TAB	DOCUMENT	DATE
1	Bulk Earthworks and Vegetation Management Plans (up to Rev 5) prepared by Maker Eng Pty Ltd • MKR00452-15-C0000 – Cover Sheet and Drawing Schedule • MKR00452-15-C0010 – General Notes- 30 June 2023 • MKR00452-15-C0020 – Zoning Layout Plan- 30 June 2023 • MKR00452-15-C0040 – Civil Key Plan- 30 June 2023 • MKR00452-15-C0100 – Stage 1 – Civil Works Layout Plan- 30 June 2023 • MKR00452-15-C0101 – Stage 1 – Civil Works (Aerial Image) Layout Plan- 13 May 2024 • MKR00452-15-C0200 – Stage 1 – Bulk Earthworks Layout Plan- 13 May 2024 • MKR00452-15-C0250 – Stage 1 – Bulk Earthworks Section Plan 1 of 2- 8 March 2024 • MKR00452-15-C0251 – Stage 1 – Bulk Earthworks Section 2 of 2- 8 March 2024 • MKR00452-15-C0300 – Typical Road Layout Plan- 30 June 2023 • MKR00452-15-C0310 – Typical Road Section Plan 1 of 2- 30 June 2023 • MKR00452-15-C0311 – Typical Road Section Plan 2 of 2- 30 June 2023 • MKR00452-15-C0500 – Longitudinal Section Road 01- 30 June 2023 • MKR00452-15-C0501 – Longitudinal Section Road 02- 30 June 2023 • MKR00452-15-C1850 – Erosion and Sediment Control Notes and Details- 30 June 2023 • MKR00452-15-C1860 – Erosion and Sediment Control Layout Plan- 30 June 2023 • MKR00452-15-C1900 – Tree Removal & Retention Layout Plan- 30 June 2023	Various dates 13 May 2024
2	Schedule of Amendments prepared by Maker Eng Pty Ltd	13 May 2024
3	Letter from Reditus re Clarification on Remediation Matters	12 March 2024
4	Letter from Geosyntec Consultants to Legacy Property regarding endorsement of Remediation Action Plan	23 May 2024
5	Remediation Action Plan prepared by Reditus, Version 6	14 September 2023
6	Archaeology Progress Statement prepared by Urbis	20 May 2024
7	Excavation Permit for Archaeological Monitoring at 27 Railway Street, Corrimal	30 April 2024
8	Compliance with Conditions of Consent re Section 60 Works Application by Department of Climate Change, Energy, the Environment and Water	16 May 2024
9	Section 60 Heritage Act Approval issued by Department of Climate Change, Energy, the Environment and Water	20 May 2024
10	Aboriginal Heritage Statement prepared by Kelleher Nightingale Consulting Pty Ltd	20 September 2023

27. The Applicant filed the amended DA with the Court on 15 July 2024.

Orders

28. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA-2023/166, as amended, for bulk earthworks, tree removal, vegetation management and ancillary works at 27 Railway Street, Corrimal NSW 2518 is determined by the grant of development consent subject to the conditions of consent at Annexure A.

…………………….

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 30 July 2024