Lexosu Pty Ltd v Wollongong City Council

[2022] NSWLEC 1664

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lexosu Pty Ltd v Wollongong City Council [2022] NSWLEC 1664

Hearing dates:

Conciliation conference on 25 October 2022

Date of orders:

01 December 2022

Decision date:

01 December 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. RD-2020/275/A for a three lot Torrens title subdivision of land legally described as Lot 5 DP 1132746 at North Marshall Mount Road, Marshall Mount, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000 cl 55

Environmental Planning and Assessment Regulation 2021 cl 3 Sch 6

Land and Environment Court Act 1979 s 34

Rural Fires Act 1997 s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021 cll 3.9, 4.9

State Environmental Planning Policy Resilience and Hazards 2021 cl 4.6

Wollongong Local Environmental Plan 2009 cll 2.6, 4.1, 4.2A, 7.2, 7.3, 7.6, 7.8, Sch 5

Texts Cited:

Planning for Bushfire Protection 2019

Category:

Principal judgment

Parties:

Lexosu Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
M Mantei (Solicitor) (Applicant)
E Kilpatrick (Solicitor) (Respondent)

Solicitors:
Madison Marcus (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2021/349631

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. RD-2020/275/A for a three lot Torrens title subdivision of land, including two new building envelopes for two new lots, and one retained existing building envelope for the residual lot, together with access road upgrades, tree removal and vegetation management (the proposal) on land legally described as Lot 5 DP 1132746 at North Marshall Mount Road, Marshall Mount (the site) by Wollongong City Council (the Council).

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 25 October 2022. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. 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 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

The proposal is amended

5. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the application because the application was lodged with the Council on 1 April 2020, the Class 1 application was filed with the Court on 9 December 2021 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).

6. The Council, as the relevant consent authority under cl 55(1) of the EPA Regulation 2000, agreed to the applicant amending the application to incorporate the report titled “Integrated Bushfire and Vegetation Management Plan” (Version 1.4) prepared by Ecoplanning and dated 27 September 2022.

7. The amended application was lodged on the NSW planning portal on 20 October 2022.

8. The parties agreed that the amendment to the applicant is minor within the meaning of s 8.15(3) of the EPA Act.

The site and the proposal

9. The site area is approximately 40 Hectares (ha) and is irregular in shape with street frontage access to North Marshall Mount Road via a battle-axe easement.

10. The proposed lots are Lot 51 19.95ha; Lot 52 8.23ha; and Lot 53 11.81ha. All three proposed lots are to be created for the purpose of a dwelling house on each lot.

11. The works proposed include an extension to the existing driveway, upgrades and associated widening in places, gravel driveway improvement, bushfire and vegetation management, and identification of building envelopes and onsite waste management system effluent management areas.

Planning framework

12. The site is zoned C3 Environmental Management and RU2 Rural Landscape pursuant to Wollongong Local Environmental Plan 2009 (LEP 2009) and the proposal is permissible with consent pursuant to cl 2.6 of LEP 2009. The objectives of the zones, to which regard must be had, are:

Zone C3 Environmental Management

1 Objectives of zone

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

Zone RU2 Rural Landscape

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To encourage the retention, management or restoration of native vegetation.

13. The proposed lots comply with the minimum lot size development standard under cl 4.1 of LEP 2009.

14. I accept the Council’s submission that pursuant to cl 4.2A(5) of LEP 2009, the extent to which the proposal is likely to affect the environmental and ecological conservation of the land with respect to the extent of clearing required for the proposal, including any clearing required for the provision of infrastructure, access and an asset protection zone identified for the land in a bush fire risk management plan, has been considered.

15. The site is located within a heritage conservation (HCA) area described as the Illawarra Escarpment Landscape Area (Sch 5 to LEP 2009). I accept the Council’s submission that the effect of the proposal on the heritage significance of the HCA has been considered.

16. Part of the site is identified as within the “natural resources sensitivity – biodiversity” mapped area under cl 7.2 of LEP 2009. I accept the Council’s submission that the matters under subcl 7.2(3) of LEP 2009 are satisfied and that the proposal is consistent with the objectives of the clause.

17. Part of the site is identified as “flood planning area” on the Flood Planning Map under cl 7.3 of LEP 2009 as it existed at the time the application was lodged. I accept the Council’s submission that the proposal complies with the matters under subcl 7.3(3) of LEP 2009.

18. Clause 7.6 Earthworks of LEP 2009 applies to the proposal. I accept the Council’s submission that the proposal is appropriate having considered the matters set out under subcl 7.6(3) of LEP 2009.

19. I accept the Council’s submission that the proposed lots are located so as to minimise adverse impacts on the natural features and environment of the Illawarra escarpment and that the proposal incorporates conservation and rehabilitation measures to enhance the Illawarra escarpment, satisfying subcl 7.8(3) of LEP 2009.

20. Chapter 3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) applies to the portion of the site located within the RU2 zone. I accept the Council’s submission that the site does not contain “core koala habitat” and that the application satisfies the obligation under cl 3.9 of SEPP Biodiversity and Conservation.

21. Chapter 4 of SEPP Biodiversity and Conservation applies to the portion of the located within the E3 zone. The controls under cl 4.9 apply to the proposal as there is no approved koala plan of management for the land. I accept the Council’s submission that the obligation under cl 4.9 to assess whether the proposal is likely to have any impact on koalas or koala habitat have been met by the application and that the proposal is likely to have low or no impact on koalas or their habitat.

22. I accept the Council’s submission that the site has been assessed and is low risk for contamination pursuant to cl 4.6 of State Environmental Planning Policy Resilience and Hazards 2021.

23. The proposed subdivision is development to which s 100B of the Rural Fires Act 1997 applies, being the subdivision of bushfire prone land that could lawfully be used for residential or rural residential purposes. The proposed subdivision requires a bushfire safety authority (BSA) under s 100B prior to the registration of the new lots. I accept the Council’s submission that the site can be made suitable for the proposal having regard to the requirements of Planning for Bushfire Protection 2019.

Conclusion

24. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 6 October 2022 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.

Orders

25. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. RD-2020/275/A for a three lot Torrens title subdivision of land legally described as Lot 5 DP 1132746 at North Marshall Mount Road, Marshall Mount, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A

Decision last updated: 01 December 2022