Long v Wingecarribee Shire Council

[2023] NSWLEC 1071

Land and Environment Court

New South Wales

Medium Neutral Citation:

Long v Wingecarribee Shire Council [2023] NSWLEC 1071

Hearing dates:

Conciliation conference on 8 December 2022

Date of orders:

16 February 2023

Decision date:

16 February 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to amend the application to rely on amended plans and additional information listed in the Conditions of Consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No. 22/1350 for the construction of a timber framed weatherboard dwelling and conversion of the existing cottage to a studio, at 381 Wildes Meadow Road, Wildes Meadow, is determined by the grant of consent, subject to the Conditions of Consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a second dwelling – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 55, 55AA, 121B

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

Land and Environment Court Act 1979, ss 34, 34AA

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

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

Wingecarribee Local Environmental Plan 2010

Category:

Principal judgment

Parties:

Amelia Elizabeth Long (First Applicant)
Christine Elizabeth Long (Second Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
J Walker (Solicitor) (Respondent)

Solicitors:
RMB Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/238791

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. 22/1350 construction of a timber framed weatherboard dwelling and conversion of the existing cottage to a studio (the proposal) at 381 Wildes Meadow Road, Wildes Meadow (the site) by Wingecarribee Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 December 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.

Amended Plans

5. The Environmental Planning and Assessment Regulation 2000 (2000 Regulation) continues to apply to the application, because the application was lodged on 28 February 2022 and not yet determined on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to s 3(2) of Sch 6 to the Environmental Planning and Assessment Regulation 2021, the requirement to use the NSW Planning Portal under the 2000 Regulation, cll 55(1), 55AA(2)(d) or 121B(1) do not apply if the development application is subject to proceedings in the Court.

6. The Council, as the consent authority, consented to the amendment of the application. The amended application amended the architectural plans the subject of the application. As a result of the amendment of the architectural plans, the parties reached agreement during the conciliation conference on 8 December 2022.

Planning framework

7. The site is zoned C3 Environmental Management pursuant to Wingecarribee Local Environmental Plan 2010 (LEP 2010). The objectives of the C3 zone, to which regard must be had, are:

• 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.

• To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

• To minimise the proliferation of buildings and other structures in these sensitive landscape areas.

• To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas.

• To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability.

8. The site is within the Warragamba Catchment. Section 8.8(1) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B & C) in force at the time the application was made (s 6.65(1) of SEPP B & C) is in the following terms:

8.8 Development consent cannot be granted unless neutral or beneficial effect on water quality

(1) A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality.

(2) For the purposes of determining whether the carrying out of the proposed development on land in the Sydney drinking water catchment would have a neutral or beneficial effect on water quality, the consent authority must, if the proposed development is one to which the NorBE Tool applies, undertake an assessment using that Tool.

Note—

The NorBE Guideline provides information and guidance for consent authorities in the use of the NorBE Tool.

9. I accept the Council’s submission that an assessment has been undertaken using the NorBE Tool and the proposal has been assessed as having a neutral or beneficial effect on water quality.

10. I accept the Council’s submission that the site has been assessed as not being contaminated, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

11. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 18 January 2023 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

12. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on amended plans and additional information listed in the Conditions of Consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. 22/1350 for the construction of a timber framed weatherboard dwelling and conversion of the existing cottage to a studio, at 381 Wildes Meadow Road, Wildes Meadow, is determined by the grant of consent, subject to the Conditions of Consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 16 February 2023