Mata Mati Pty Limited v Wollongong City Council

[2021] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mata Mati Pty Limited v Wollongong City Council [2021] NSWLEC 1342

Hearing dates:

Hearing on 13 May 2021

Date of orders:

10 June 2021

Decision date:

10 June 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-2018/936/A for the establishment of a building envelope, consolidation of land and creek restoration works on land situated at and known as 415 Lawrence Hargrave Drive, Thirroul, also known as Lot 41 DP1230457 and Lot 3 DP166257, and also on Lots 1 and 3 in DP1083143, is approved subject to the conditions in Annexure A.

(3) Each party is to pay its own costs.

Catchwords:

DEVELOPMENT APPLICATION – earthworks – flood risk and vegetation management – site consolidation – concept dwelling – consent orders

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, ss 34AA

Wollongong Local Environmental Plan 2009, cll 2.3, 5.10, 7.2, 7.3, 7.4, 7.6, 7.7

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Water Management Act 2000, s 91

Texts Cited:

Practice Note - Class 1 Development Appeals, Land and Environment Court

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Mata Mati Pty Limited (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
A Kelly (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
Foundation Law Group (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2019/189974

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 2018/936/A by Wollongong Shire Council (hereafter the ‘Council’) which seeks establishment of a building envelope, earthworks, creek realignment and site consolidation on Lot 41 DP 1230457, also known as 415 Lawrence Hargrave Drive, Thirroul and Lot 3 DP 166257 (hereafter known as ‘Lot 3’), also known as Hewitts Lane, and also works on Lots 1 and 3 DP 1083143. Lots 41 and 3 are hereafter known as the site.

2. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference, pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (Court Act), which was held on 8 December 2020, as an onsite view by agreement of the parties. The Court agreed to the parties request to terminate the conciliation, and proceed to a hearing, pursuant to s 34AA(4).

4. Prior to the hearing of this appeal, the applicant filed a Notice of Motion (NoM) to amend the DA and rely on supporting documents/plans. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Court (Registrar) granted leave to the amend the DA on 12 February 2021, without opposition of the respondent.

5. The application now before the Court, as amended, specifically seeks:

• creekworks to restore and realign Hewitts Creek to its natural alignment,

• earthworks to mitigate the risk relating to flooding of the building envelope,

• concept design for a dwelling contained within the proposed building envelope, and

• consolidation of two lots (Lots 41 and 3) into one lot.

6. Subsequent to the termination of the conciliation and based on the amended DA, the Council considers that the contentions raised in the Statement of Facts and Contentions (SoFC), dated 12 July 2019 and tendered as Exhibit 4, are satisfactorily resolved. The contentions previously posed related to: prohibition on dwelling due to flooding risk; detrimental impacts to existing drainage due to earthworks; building of a dwelling not suitable within the foreshore building line; potential impact on waterway and riparian corridors; inappropriate stormwater management; and lack of owners consent for proposed works.

7. The parties recognise that there is community concern regarding the proposed development at this site, although agree that the issues raised by objectors are resolved by the amendments made to the DA, and conditions of consent relied upon.

8. The hearing commenced remotely by Microsoft (MS) Teams in Court. At the start of the hearing the parties agreed that the observations and discussions from the conciliation conference could be considered by the Court in its assessment of the DA under appeal.

9. Although the parties agree that the contentions are resolved and there are no jurisdictional issues relating to the proposed development, the Council seeks the granting of consent for DA 2018/936/A to be determined through consent orders made by the Court. A signed version of the amended consent orders with agreed conditions was tendered at the hearing (Exhibit C). After judgment was reserved, the Court identified a minor grammatical error in the consent orders as sought. By agreement of the parties, the consent orders were amended, refiled and replace Exhibit C.

10. In circumstances where the Council agrees to the grant of development consent, although seeks the Court to be the consent authority, I am nonetheless required to carry out an assessment pursuant to s 4.15(1) of the EPA Act to determine if it is lawful and whether it is reasonable for the Court to grant consent.

11. I am also required to consider the evidence and submissions of the objectors/residents. The Practice Note - Class 1 Development Appeals (Practice Note) of the Land and Environment Court sets out the procedural requirements at [99] for the Courts consideration:

“[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.”

12. After notification of the amended DA referred to in the consent orders, Council received written submissions from 14 objectors, which were tendered in the hearing as Exhibit 3. The issues raised by these residents are summarised as follows: potential for adverse flood impact; loss of access to property through Hewitts Lane; heritage value of Hewitts Lane; vegetation loss; and lack of transparency of lot acquisition. The written submissions in response to the amendments made to the DA are particularly focused on the realignment of Hewitts Creek and site consolidation, resulting in loss of public access to Hewitts Lane. These have been considered by the Court.

13. During the hearing, the Court observed a discrepancy with the tendered survey plan, which the applicant agreed to correct, without opposition of the respondent. The amended survey plan was filed with the Court on 13 May 2021, and replaces Exhibit A.

Relevant Planning Controls

14. The requirements of s 4.15(1) of the EPA Act are relevant for the Court’s consideration in the granting consent to this DA under appeal.

15. The other jurisdictional prerequisites of particular relevance in these proceedings before the Court are consistency with the: Water Management Act 2000 (WM Act); Environmental Planning and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); and Wollongong Local Environmental Plan 2009 (WLEP).

16. With regards to the merit consideration of the amended DA, the controls of the Wollongong Development Control Plan 2009 (WDCP) also require the Court’s consideration, specifically those relating to flood management, described in Chapters E13 and E14.

Evidence

17. The Court heard from Mr Anthony Barthelmess, as an expert in flooding and stormwater.

18. The Court has also relied on the following supporting documentation to assess the amended DA under appeal:

1. Detailed Flood Study, Revision 5, dated 16 March 2021 by Reinco Consulting;

2. Survey Plan, Revision 7, dated 13 May 2021, by Dennis Smith Surveyors;

3. Civil Works Concept Plan, Revision C, dated February 2021 by Reinco Consulting;

4. Vegetation Management Plan, Version 2.1, dated 17 March 2021 by Ecoplanning;

5. Flora and Fauna Assessment, Version 2.0, dated 21 December 2021 by Ecoplanning;

6. Concept house design, Issue A, dated December 2020 by Australian House Design Group;

7. Geomorphic Assessment, February 2021, by Reinco Consulting;

8. Joint Expert Report for stormwater/flooding on original DA, Exhibit 5;

9. Amended conditions of consent, dated July 2019; and

10. Owners consent from Lots 1 and 3 DP 1084133, dated 17 December 2020.

Flooding, stormwater and riparian corridor

19. The contention as raised by Council, and by numerous objectors relates to whether the proposed development, as designed, is consistent with the requirements of cll 7.3 and 7.4 of the WLEP. The contention, in essence, revolves around whether the proposed works result in an adverse change in flood behaviour in the (Hewitts) Creek and across the riparian zone.

20. The parties agree that the site is mapped as being on flood prone land, below the flood planning level (FPL) and within a riparian corridor, pursuant to cll  7.3(2)(a), 7.3(2)(b), and 7.4(2) of the WLEP. The site is subjected to directed floodwaters during high rainfall events and stormwater flow.

21. To address the flooding requirements of the WLEP, as explained to the Court, the proposed development seeks to maintain the existing flood regime and conveyance capacity of the land/creek, although along a different alignment. In addition, the application seeks to ensure that there is an ability for persons occupying the land to safely respond in a significant flood event, particularly that greater than the 1 in 100-year (probability) event.

22. The parties agree that the proposed earthworks and creek works on the site, and the concept dwelling in its proposed location/elevation on a building pad, is designed to satisfy the requirements of cl 7.3 of the WLEP.

23. The application relies on a flood assessment report (Exhibit A). Mr Barthelmess advised the Court that the proposed design of the realigned channel will not result in any adverse water related impacts within or beyond the site. It was explained to the Court that the proposed building pad is located and elevated, with stabilising batters, as shown in the civil works plan, to protect residents of a future dwelling in the event of a flood event.

24. Also explained to the Court, was that in a 1:100 year flood event, the residents would be able to shelter in place on a (conceptual) first (habitable) floor or evacuate via the driveway access, all times but for 10 minutes when it is not trafficable at the junction with Lawrence Hargrave Road. In a Probable Maximum Flood (PMF) event, the residents could (hypothetically) shelter in place on the second (habitable) floor level, as shown in the conceptual dwelling design on the designed building pad.

25. The parties agree that the proposed design of the driveway access, building pad and (conceptual) dwelling are appropriate to mitigate any risk to life during a flood event, and do not cause adverse impact to other residents.

26. Mr Barthelmess explained that the flood model relied on for this application incorporates all existing and proposed structures that could affect the conveyance of stormwater and flood water across the site, and that the channel and building pad are suitably designed to manage stormwater and flooding without creating adverse impact or risk.

27. Mr Reilly agreed that the Council does not hold any reservations regarding the design, input or output quality of the model relied on by the applicant, and that Council accepts the model results as reliable. The Council is therefore satisfied that the proposed development sufficiently manages stormwater and flooding on and beyond the site, and mitigates sufficiently flood risk associated with the site.

28. After consideration of the evidence before me, I am satisfied that the proposed development is designed to address and manage stormwater and flooding associated with the site, and sufficiently mitigates flood risk to persons, pursuant to cl 7.3 in the WLEP, as well as that described in Chapters E13 and E14 of the WDCP. The proposed design described in the amended plans and supporting documents to the application, and the agreed conditions of consent, satisfy the Court that the issues of stormwater and flooding are sufficiently mitigated to protect persons and property, without adverse environmental impact.

29. As explained to the Court, the parties agree that the development is not an integrated development, pursuant to s 4.46 of the EPA Act.

30. However, due to the proximity and nature of the works within the riparian zone of Hewitts Creek, a controlled activity approval is required, pursuant to s 91 of the WM Act. It was explained to the Court that the Natural Resources Access Regulator (NRAR) has been in discussions with the applicant, specifically with regards to vegetation management and its effect on water conveyance. The proposed development, in design and conditions, has considered these discussions. I understand that the requirement for a controlled activity approval is addressed in the agreed conditions of consent, specifically at condition 22.

31. I am therefore satisfied that the requirements of cl 7.4 of the WLEP are sufficiently addressed by the proposed development.

Earthworks

32. The contention as originally posed by Council relates to the potential for the proposed earthworks on the site to cause adverse impact to drainage and soil stability in the locality.

33. The parties now agree that based on the amended design for the dwelling, its proposed location, elevation of the building pad, access road and realignment of the drainage channel, this contention is resolved.

34. Based on the proposed earthworks, specifically the civil works associated with the drainage channel, building pad and access road, as described to the Court, I am satisfied that the requirements of cl 7.6 of the WLEP are sufficiently addressed. As assessed, there are no adverse impacts to drainage patterns or soil stability in the locality.

35. Further to satisfying cl 7.6 of the WLEP, I have no evidence that suggests that the proposed development will cause adverse impact to the amenity of adjoining properties. The requirements for appropriate fill are addressed in the conditions of consent (at 44). There are no issues raised to or evidence before the Court regarding Aboriginal artefacts or relics associated with the site.

Foreshore building line

36. The contention, as raised by Council, relates to the potential for the proposed development to adversely impact the natural foreshore processes and cause amenity impact to adjoining properties.

37. The parties agree that based on the amended plans, supporting documents and agreed conditions of consent, the construction of a (future) dwelling on the site is reasonable. The proposed earthworks ensure that the elevation and size of the building pad is sufficient and appropriate to erect a building in the foreshore area.

38. The parties also agree that the conceptual design of a dwelling in the location proposed on the site will not cause adverse amenity impact to adjoining residents, due to the reasonable separation between existing/proposed buildings and the location of proposed vegetation within the riparian zone.

39. I have assessed the evidence before me and accept that the conceptual dwelling design in its proposed location on the site, satisfies the requirements of cl 7.7 of the WLEP.

40. I understand that a dwelling on the site does not form part of the DA under appeal, and which would be the subject of a separate and future application.

Vegetation

41. Although not originally contended by Council, the parties agree that there is a heritage listed Fig tree located on an adjacent property, which should be protected, pursuant to cl 5.10 of the WLEP.

42. The parties consider, and I accept, that the Fig tree as shown on the survey plan and located on Lot 40 DP 1230457, is sufficiently protected by the proposed works on the site and agreed conditions of consent.

43. As explained to the Court, the root zone of the Fig tree has and will continue to be constrained in a northerly direction (towards the site) by an existing retaining wall that is shown on the survey plan. This retaining wall will remain in its current location and structure, and there are no earthworks proposed on the site that would further impact the root zone of this tree. The proposed realignment of the creek and associated earthworks are not considered within the root zone of the Fig tree.

44. Therefore, I am satisfied that the requirements of cl 5.10 of the WLEP are addressed, and the Fig tree is sufficiently protected.

45. Further to this, the application relies on a Vegetation Management Plan (VMP), that has been informed by a Flora and Fauna study (Exhibit A). The application seeks to remove 0.59 Hectares of exotic and native vegetation, predominantly within Lot 3 and along the existing creekline.

46. The evidence before the Court suggests that there are no identified threatened or endangered flora or fauna species located on the site, and the site is not mapped as having biodiversity values, pursuant to the Biodiversity Conservation Act 2016.

47. The site is mapped on the ‘Natural Resource Sensitivity – Biodiversity’ Map, pursuant to the cl 7.2 of the WLEP, and on the ‘Riparian Land’ Map, pursuant to cl 7.4.

48. The vegetation relating to the proposed realignment of Hewitts Creek is considered in the VMP and addressed in the agreed conditions of consent.

49. The parties agree that the requirements of cll 7.2 and 7.4 of the WLEP are sufficiently addressed by the VMP and agreed conditions of consent. I concur.

Other relevant provisions of the WLEP

50. The proposed development on the site is located within the R2 Low Density Residential zone, as described in cl 2.3 of the WLEP. The proposed development is permissible with consent. The parties agree, and I accept, that the application as amended, satisfies the objectives of this zone. The site is proposed to accommodate a single residential dwelling that is capable of being serviced by existing public infrastructure. This will form part of a separate application, and not before the Court.

51. The parties also agree, which I accept, that based on the proposed works and conceptual dwelling design, the relevant provisions of the WLEP are achieved by the application before the Court. The parties explained that a (future) dwelling on the site is the subject of a separate development application, and that the proposed building pad can accommodate such a dwelling that is capable to satisfy the relevant development standards, as established in the WLEP.

52. All relevant contentions and objector issues arising from the amended DA that relate to the WLEP, are resolved to the Courts satisfaction by the amended plans, supporting documents, and agreed conditions of consent, as described above in this judgment.

Lot Consolidation

53. Although not contended in the SoFC, issues relating to lot consolidation and public access along Hewitts Lane were raised by resident objectors, based on the amended DA, which relies on the acquired Lot 3 (Hewitts Lane).

53. ‘Hewitts Lane’ is a strip of land that adjoins Lot 41 to the north and is currently relied on by adjoining residents to access the rear of their properties, and for pedestrian access to the beach. The residents are concerned that they will no longer have access through Hewitts Lane.

54. It is noted that the application was amended by the Court, prior to the hearing of this appeal to include Lot 3 as part of the site. The location of Lot 3 is shown in the survey plan.

55. Although it has long been thought by residents that this ‘Lane’ was public land, this area is actually private property, with an easement (right of way) to access stormwater infrastructure.

56. Hewitts Lane is not identified as a heritage listed item.

57. Prior to the conciliation, the applicant purchased Lot 3, which now forms part of the site relied on in this application. The effect of purchasing this lot is that the applicant is now able to provide trafficable access to the rear of Lot 41, which is deemed by both parties as a more reasonable location to site a dwelling, and has also provided a basis for the resolution of a number of the contentions. I accept the submissions of the parties that the development addresses the accessibility requirements for a dwelling on the site, as previously contended.

58. The parties and the Court agree that based on the design of the proposed development, the right of way as required by the easement on Lot 3 is maintained. The parties have not raised nor provided any evidence to the Court that suggests the right of across Lot 3 will be impeded by the proposed development.

59. It is acknowledged that the residents do not have a legal right to access their properties through Lot 3. After giving due consideration to the resident submissions on this issue, I find there is no evidence or special circumstances that public access should be reasonably provided to properties that currently use Hewitts Lane, unless by (separate and private) agreement of the applicant. This is not an issue for the assessment by the Court in this appeal.

60. I therefore find that the consolidation of Lots 41 and 3, considered here as the ‘site’, facilitates the active use of the site for the purpose of residential development.

61. There are no jurisdictional issues that restrict the Court from consenting to the DA consolidation of the lots as proposed in this application.

Owners Consent

63. The development proposes works on adjoining lands identified as Lots 1 and 3 DP 1083143, and which are not owned by the applicant.

64. Written evidence of owners’ consent has been provided to the Court (Exhibit A) which consent to the proposed works by the registered proprietors of these properties.

65. The Court is satisfied that the relevant owner’s consent for works that are the subject of the application apply to the relevant land and satisfy the requirements of cl 49(1) of the EPA Reg.

Contamination

66. Although not a contention of Council, it is a jurisdictional requirement to the consent of the DA that the Court, as consent authority, is satisfied that the proposed development is a suitable purpose for the land, pursuant to cl 7 of SEPP 55.

67. The parties agree and I accept the evidence provided in assessment of the amended DA under appeal, that the requirements of cl 7 of SEPP 55 are satisfied, therefore the site is deemed suitable for the proposed residential purpose. The supporting documents to the amended DA confirm the site is suitable for residential development, based on: a Stage 2 Detailed contamination report (Exhibit D); and a letter from a suitably qualified person (Exhibit E).

Notification and Public interest

68. Both the original DA and the amended DA (forming part of the consent orders) were publicly notified to residents in accordance with the WDCP. During the notification periods, one and 14 (Exhibit 3) submissions in objection were received by Council, for the original and amended (consent order) DA, respectively.

69. The parties agree, and I am satisfied that with the resolution of the contentions raised in the SoFC and the issues raised in objector submissions, the proposed development is in the public interest, and s 4.15(1)(e) of the EPA Act satisfied.

Consent Orders

70. Notwithstanding the parties’ agreement to consent orders, in assessing this matter, I have myself carefully considered the evidence relevant to the amended DA under appeal, together with the submissions (resident) and my observations during the onsite view (conciliation).

71. I am required to: assess the evidence that an approval is lawful and appropriate; be satisfied that any objections have been properly taken into account; and confirm that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard.

72. The plans and documents relied on by the amended DA have been considered in the context of the site and surrounding area, particularly with regards to the realignment of Hewitts Creek, accessibility, vegetation management and the impacts from flooding.

73. The appropriate merit assessment of the amended DA has been undertaken and I am satisfied that the evidence before me resolves the contentions and resident submissions, as identified.

74. I am satisfied in my assessment, pursuant to s 4.15(1) of the EPA Act, that DA 2018/936/A warrants approval. I find that there are no jurisdictional impediments to this consent and that DA 2018/936/A should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

75. I find that the relevant merit and jurisdictional requirements are met and accordingly, consent is granted to the proposed development in accordance with the consent orders signed by the parties (amended as Exhibit C) and subject to the conditions of consent annexed to this judgment.

Orders

76. Consequently, the orders of the Court are as follows:

1. The appeal is upheld.

2. Development Application DA-2018/936/A for the establishment of a building envelope, consolidation of land and creek restoration works on land situated at and known as 415 Lawrence Hargrave Drive, Thirroul, also known as Lot 41 DP1230457 and Lot 3 DP166257, and also on Lots 1 and 3 in DP1083143, is approved subject to the conditions in Annexure A.

3. Each party is to pay its own costs.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (214094, pdf)

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Decision last updated: 10 June 2021