Marsden v Clarence Valley Council

[2023] NSWLEC 1111

Land and Environment Court

New South Wales

Medium Neutral Citation:

Marsden v Clarence Valley Council [2023] NSWLEC 1111

Hearing dates:

Conciliation conference on 28 February 2023

Date of orders:

14 March 2023

Decision date:

14 March 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 listed at condition 2.1 of the conditions of consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No 2021/0303 for the construction of a two-storey dwelling house, at 5 Carrington Street, Palmers Island, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a two-storey dwelling house – conciliation conference – agreement between the parties - orders

Legislation Cited:

Clarence Valley Local Environmental Plan 2011 cl 5.21, 7.6

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 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 (Resilience and Hazards) 2021, s 2.10

Category:

Principal judgment

Parties:

Gay Marsden (Applicant)
Clarence Valley Council (Respondent)

Representation:

Counsel:
R Fox (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Fishburn Watson O’Brien Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/290330

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 2021/0303 for the construction of a two‑storey dwelling house (the proposal), at 5 Carrington Street, Palmers Island (the site), by Clarence Valley 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 28 February 2023. 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 continues to apply to the application, because the application was lodged on 7 May 2021 and not yet determined on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to subs 3(2) of Sch 6 to the Environmental Planning and Assessment Regulation 2021, a requirement to use the NSW Planning Portal under the 2000 Regulation, cll 55(1), 55AA(2)(d) or 121B(1) does 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 during the conciliation conference. The amended application amended the architectural plans the subject of the application (Revision K) to increase the riverside (western) setback of the dwelling house to 10m. As a result of the amendment of the architectural plans, the parties reached agreement during the conciliation conference.

Planning framework

7. The site is zoned R2 Low Density Residential pursuant to Clarence Valley Local Environmental Plan 2011 (CVLEP 2011). The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

8. The site is located within the flood planning area and is subject to the application of cl 5.21 of CVLEP 2011, which is in the following terms:

(1) The objectives of this clause are as follows—

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5) In this clause—

Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.

flood planning area has the same meaning as it has in the Floodplain Development Manual.

Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005.

9. I accept the Council’s submission that the matters listed in cl 5.21(2) and (3) have been properly considered. The proposal is designed in modules so that it is relocatable in sequence in the evert of riverbank erosion and features flood compatible construction at the ground floor level. All habitable levels are above the 1 in 100 year flood level plus freeboard.

10. The site is identified as land subject to riverbank erosion. In accordance with cl 7.6(3) of CVLEP 2011, development consent must not be granted to the carrying out of any development on land in the Riverbank Erosion Area unless the consent authority is satisfied of the following matters:

(3) Development consent must not be granted to the carrying out of any development on land to which this clause applies unless the consent authority is satisfied that—

(a) the proposed development is not likely to adversely affect, or be adversely affected by, riverbank erosion, and

(b) the development is designed, sited and will be managed to avoid any adverse environmental impact from exposure to riverbank erosion or, if that impact cannot be avoided, after having taken into consideration feasible alternatives, the development is designed, sited and will be managed to minimise that impact or to mitigate that impact if that impact cannot be minimised, and

(c) there is no immediate threat to any building from riverbank erosion, and

(d) provision has been made for the relocation, modification or removal of the development if required as a result of a threat to the development from riverbank erosion.

11. I accept the agreement of the coastal engineering experts in their joint report that the proposal is considered to be at a low risk of being affected by bank erosion over an acceptably long design life for residential development and that the requirements of cl 7.6(3) are satisfied by the proposal.

12. The site is within the coastal environment area (s 2.10 of State Environmental Planning Policy (Resilience and Hazards) 2021 [SEPP Resilience and Hazards]). Section 2.10 of SEPP Resilience and Hazards is in the following terms:

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

(3) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

13. I accept the Council’s submission that the matters under s 2.10(1) have been considered. I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the matters listed under cl 2.10(1).

14. I accept the Council’s submission that the site is not contaminated (cl 4.6 of SEPP Resilience and Hazards).

Conclusion

15. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 28 February 2023 and I am satisfied, based on 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

16. The orders of the Court are:

1. The Applicant is granted leave to amend the application, to rely on amended plans listed at condition 2.1 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Application No 2021/0303 for the construction of a two‑storey dwelling house, at 5 Carrington Street, Palmers Island, 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: 14 March 2023