McFadden v Upper Hunter Shire Council

[2024] NSWLEC 1112

Land and Environment Court

New South Wales

Medium Neutral Citation:

McFadden v Upper Hunter Shire Council [2024] NSWLEC 1112

Hearing dates:

Conciliation conference on 8 March 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No DA 30-2022 for a helipad is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: helipad in RU1 zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38, Sch 3 s 4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 3.3, 3.6, Chs 2, 3

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

Hunter Local Environmental Plan 2013, cll 6.1, 6.7, 6.8, 6.10

Texts Cited:

Upper Hunter Community Participation Plan 2019

Category:

Principal judgment

Parties:

John McFadden (First Applicant)
Izabella McFadden (Second Applicant)
Upper Hunter Shire Council (Respondent)

Representation:

Counsel:
J Zorzetto (Solicitor) (Applicants)
A Rutherford (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/117401

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Upper Hunter Shire Council (the Respondent) of development application DA 30-2022 seeking consent for a helipad at Lot 25 in DP 240800, otherwise known as 4 King George V Avenue, Merriwa.

2. 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 8 March 2024, and at which I presided.

3. However, prior to the conciliation conference the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties.

4. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent, in accordance with s 4.17 of the EPA Act.

5. I note here that a signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 28 February 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. The parties identified the jurisdictional prerequisites of relevance in these proceedings that are satisfied for the reasons that follow:

1. The development application (DA) was lodged on 10 March 2022, and notified by the Respondent, in accordance with the Upper Hunter Community Participation Plan 2019, from 23 March – 6 April 2022, during which time public submissions were received.

2. The DA was made with land owners consent, being the First and Second Applicant in these proceedings.

3. The DA seeks consent for a maximum of seven helicopter flight movements per week, including take off and landing. Additionally, no clearing of native vegetation is necessitated, and the site is not within 40m of an environmentally sensitive area of State significance. As such, the proposal does not answer the description of designated development within terms described at s 4, Sch 3 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

4. The site is located within an area identified in the Upper Hunter Local Environmental Plan 2013 (UHLEP) as RU1 Primary Production, in which helipads are permitted with consent where consistent with the relevant objectives of the RU1 zone, as follows:

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

•  To encourage diversity in primary industry enterprises and systems appropriate for the area.

•  To minimise the fragmentation and alienation of resource lands.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To protect the agricultural value of rural land.

•  To maintain the rural landscape character of the land in the long term.

•  To ensure that development does not unreasonably increase demand for public services or public facilities.

…

5. I note here that no height of building standard, or floor space ratio applies to the site and so those provisions of the UHLEP are not engaged.

6. As no earthworks are proposed, the provision at cl 6.1 is also not engaged.

7. Clause 6.7 of the UHLEP precludes the grant of consent in the event the consent authority, or Court on appeal, considers that the proposed development will penetrate the Limitation or Operations Surface unless it has consulted with the relevant Commonwealth body about the application. Limitation or Operations Surface is defined at cl 6.7 as the Obstacle Limitation Surface or the Procedures for Air Navigation Services Operations Surface as shown on the Obstacle Limitation Surface Map or the Procedures for Air Navigation Services Operations Surface Map for the Scone Memorial Aerodrome.

8. The parties agree that the proposal will not penetrate the Limitations or Operations Surface, and the site is not located near the Scone Memorial Aerodrome, which is around 60km from the subject site by road. As such, the provisions of cl 6.8 of the UHLEP do not apply.

9. Clause 6.10 of the UHLEP requires the Court to be satisfied that adequate arrangements have been made to ensure any of the following services that are essential for the development will be available when required:

(a)  the supply of water,

(b)  the supply of electricity,

(c)  the disposal and management of sewage,

(d)  stormwater drainage or on-site conservation,

(e)  suitable vehicular access.

10. The Applicant has prepared a Water Availability Plan. On this basis, I am satisfied that the terms of the development application, as amended, and agreed conditions of consent, provide for the supply of water and suitable vehicular access as those services that are essential for the development.

State Environmental Planning Policy (Biodiversity Conservation) 2021

9. As the Respondent is not identified as a local government area within s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), and land zoned as RU1 is not identified in s 2.3(1)(b) of the Biodiversity SEPP, Chapter 2 does not apply to the land.

10. However, as the land is identified in s 3.3 of the Biodiversity SEPP, and the site is within the same ownership as adjoining land, Lot 101 in DP 1087611, that, together, have an area greater than 1 hectare, and for which consolidation is proposed, Chapter 3 of the Biodiversity SEPP applies to control development in Koala Habitat.

11. A letter prepared by Australian Environmental Surveys, dated 29 August 2022, accompanies the development application, recording a desktop evaluation undertaken by Mr Ross Wellington to evaluate the biodiversity values of the land and its surrounds. Mr Wellington also records a site inspection undertaken by him on 11 August 2022, noting koalas occupy several species of trees recorded in the wider locality.

12. A letter of the same author, dated 8 March 2024, provides, in my view, the requisite level of assessment necessary for the Council, or the Court on appeal, to form the opinion of satisfaction as to whether or not the land is a potential koala habitat pursuant to s 3.6 of the Biodiversity SEPP. It is not.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. On the basis that the land does not answer the description of land at subs (4) of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, and has a history of pastoral grazing, I accept the land is suitable for the purpose for which development is proposed to be carried out.

Conclusion

14. 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.

15. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

16. The Court notes that:

1. The Respondent, Upper Hunter Shire Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA 30-2022 in accordance with the documents listed below:

Amended Architectural Plans
Plan	Prepared by	Dated
Water Availability Plan Drawing No DA103	IM DESIGN AND DRAFTING	3 August 2023
Proposed Flight Path Drawing No DA 105	IM DESIGN AND DRAFTING	12 October 2023
Irrigation Plan Drawing No DA107	IM DESIGN AND DRAFTING	22 November 2022
Supporting Documentation
Acoustic Report (Noise contentions responses) Report 11.00276R2-03	Acoustic Consultants Australia	2 August 2023
Acoustic Report (Further noise monitoring) Report 11.00276R3-01	Acoustic Consultants Australia	17 October 2023

Orders

17. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA 30-2022 for a helipad is determined by the grant of consent subject to conditions contained in Annexure A.

T Horton

Commissioner of the Court

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Annexure A

Decision last updated: 14 March 2024