Mark Mackenzie, Ian Fooks, Stephen Pugh, Daniel Fooks and James Strange ATF the Heathcote Gospel Trust v Sutherland Shire Council

[2023] NSWLEC 1470

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mark Mackenzie, Ian Fooks, Stephen Pugh, Daniel Fooks and James Strange ATF the Heathcote Gospel Trust v Sutherland Shire Council [2023] NSWLEC 1470

Hearing dates:

Conciliation conference on 16 May, 22 June and 5 July 2023

Date of orders:

21 August 2023

Decision date:

21 August 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The applicant shall pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $15,000.00 within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application No DA21/0878, as amended in accordance with the documentation listed in Annexure A, for the development of a two lot Torrens title subdivision to create a new residential lot at Lot 1 DP 1061705, being 44R Forum Drive, Heathcote, NSW subject to the conditions in Annexure B.

Catchwords:

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

Legislation Cited:

Land and Environment Court Act 1979 s34

Environmental Planning and Assessment Act 1979 ss 4.16, 4.46

Environmental Planning and Assessment Regulation 2021, s 37

Rural Fires Act 1997, s 100B

Sutherland Shire Local Environmental Plan 2015 cll 2.6, 4.1, 4.1A, 6.5

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2

Biodiversity Conservation Act 2016

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Mark Mackenzie, Ian Fooks, Stephen Pugh, Daniel Fooks and James Strange as trustees for the Heathcote Gospel Trust (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
Colin Biggers and Paisley
Pikes & Verekers Lawyers

File Number(s):

2022/375387

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Sutherland Shire Council, of development application DA21/0878. This application seeks consent for a two-lot Torrens title subdivision to create a new residential lot at 44R Forum Drive, Heathcote, legally known as Lot 1 DP 1061705.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. 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 on 15 June, and subsequently on 29 June and 5 July 2023. I presided over the conciliation conference.

4. After the conciliation conference, 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 and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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.

6. 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 each has been satisfied, and from this I note the following points.

7. The development application was publicly exhibited between 16 September 2021 and 8 October 2021, from which 62 unique submissions were received. The parties submit, and I accept, that the relevant issues raised in these submissions have been adequately considered in the amended application.

8. Pursuant to s 4.46 of the EPA Act, the development is integrated development because, pursuant to s 100B of the Rural Fires Act 1997 (NSW), authorisation is required from the NSW Rural Fire Service for special fire protection purposes, which includes subdivision of land. The NSW Rural Fire Service provided its general terms of approval and the required Bush Fire Safety Authority on 13 February 2022. These general terms of approval have been adopted into the agreed conditions of consent at Annexure B.

9. Pursuant to cl 2.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP), Torrens title subdivision is permissible with development consent. Further, the site is zoned C4 Environmental Living. The proposed development is consistent with the relevant objectives of this zone.

10. The development complies with the minimum subdivision lot size requirements because the proposed new lot, at 2139m², meets the requirements of SSLEP cl 4.1(3A).

11. Pursuant to the requirements of SSLEP cl 4.1A(2), the proposed development has a lot width that is greater than 18m at the building line and a depth greater than 27 metres.

12. The subject site is identified on the Terrestrial Biodiversity Map in the SSLEP as ‘Environmentally Sensitive Land’, and subsequently cl 6.5 of the SSLEP applies. Pursuant to the requirements of this clause, the parties submit, and I accept that the development has been designed to avoid any significant adverse environmental impact, including placing relevant constraints on the future development of the land for a dwelling house by way of condition of consent (Condition 2).

13. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 addresses contamination of the subject site. This section states that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated. The parties submit, and I accept, that there are no known past contaminating uses or activities on the site, and that prior to its current use the land comprised undeveloped bushland. Subsequently, the land is not considered to be contamination, nor is remediation required to enable the site to be suitable for the residential use that will be facilitated by this subdivision.

14. Pursuant to Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, a permit is required in order to clear vegetation on the subject site. Sutherland Shire Development Control Plan 2015, Ch 39 Pt 4 specifies the trees for which a permit is required to clear. Pursuant to this, consent is requested and may be granted for the removal of two trees in this development application.

15. The proposed development has been assessed under the relevant provisions of the Biodiversity Conservation Act 2016. The parties submit, and I accept, that the development does not trigger the Biodiversity Offsets Scheme under this Act because:

1. The development will not significantly affect threatened species or ecological communities.

2. The proposal will not exceed the native vegetation clearing thresholds of 0.25 Ha for a minimum lot size of less than 1 Ha.

3. The area to be impacted does not appear on the Biodiversity Values Map.

4. The development application does not need to be supported by a Biodiversity Development Assessment Report.

16. For these reasons, 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.

17. 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.

18. The Court notes:

1. That Sutherland Shire Council, as the relevant consent authority, has agreed, under section 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant’s amended development application DA21/0878 in accordance with the amended material identified at Annexure A.

2. The applicant has filed the amended material with the Court on 25 July 2023.

19. The Court orders:

1. The applicant shall pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $15,000.00 within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application No DA21/0878, as amended in accordance with the documentation listed in Annexure A, for the development of a two lot Torrens title subdivision to create a new residential lot at Lot 1 DP 1061705, being 44R Forum Drive, Heathcote, NSW subject to the conditions in Annexure B.

E Washington

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 25 August 2023