Mitchell v Mid-Coast Council

[2024] NSWLEC 1016

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mitchell v Mid-Coast Council [2024] NSWLEC 1016

Hearing dates:

Conciliation conference on 17 January 2024

Date of orders:

24 January 2024

Decision date:

24 January 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application DA2023/2007, which seeks alterations and additions to an existing building, being for commercial additions and change of use including sale of liquor on Lot 2, Deposited Plan 1235034, also known as 203 Charlotte Bay Street, Charlotte Bay, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing building – incorporate bottle shop into existing supermarket – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Great Lakes Local Environmental Plan 2014, cl 2.3,

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.8, 2.10, 2.11

Texts Cited:

Great Lakes Development Control Plan 2014

Category:

Principal judgment

Parties:

Peter Mitchell (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
T Pickup (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
Pickup Legal (Applicant)
Local Government Legal (Respondent)

File Number(s):

2023/247759

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA2023/2007 (the DA) by Mid-Coast Council (the Council), which seeks alterations and additions to an existing building, and a change of use for the provision of a bottle shop within an existing supermarket on Lot 2 Deposited Plan 1235034, also known as 203 Charlotte Bay Street, Charlotte Bay (the site).

Background

2. The DA was lodged with Council on 6 February 2023. The DA was notified to residents, with 59 submissions received, of which 34 were in objection, 23 were in support and two were invalid. After internal review, the Council determined to refuse the DA on 26 July 2023.

3. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which commenced with a site view, and the Court heard from five residents in oral submission.

5. Prior to the conciliation, the Council agreed for the Applicant to supplement the traffic study that supports the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the supplementary information and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment and in the conciliation, is for the Court to grant consent to the amended Development Application DA2023/2007, with conditions.

7. The DA under appeal does not propose any external changes to the existing building or general operation of the site as a supermarket. It is recognised that there are no additional parking needs associated with the bottle shop located within the supermarket, however, to address concerns of residents, clearer parking designation is proposed to support the proposed operation of the site. Additional signage to address existing parking/traffic concerns related to the current operation of the site have been considered in the conditions attached to the consent.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA2023/2007, subject to conditions in Annexure A.

Jurisdictional prerequisites

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Great Lakes Local Environmental Plan 2014 (GLLEP):

1. Pursuant to cl 2.3 of the GLLEP, the proposed residential development is situated over land zoned RU5 Village. The proposed development, as described to the Court, is permissible with consent. The DA addresses all the relevant objectives, aims, standards and requirements of the GLLEP.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site is located within land in proximity of wetlands or littoral rainforest, in the Coastal Use Area and in the Coastal Environment Area, pursuant to Ch 2 of the SEPP Resilience. The proximity of the site to these sensitive coastal lands must be considered, prior to grant of consent. Based on the documents that support the DA, it is assessed that the proposed alterations to the operation of the site does not adversely affect defined sensitive coastal areas/habitats, pursuant to ss 2.8, 2.10 and 2.11. This assessment together with the agreed conditions of consent, satisfy the relevant requirements of Ch 2 of the SEPP Resilience.

2. The DA is supported by a Statement of Environmental Effects, prepared by Key Urban Planning, dated 5 January 2023.

3. Great Lakes Development Control Plan 2015 (GLDCP):

1. The original DA was publicly notified in accordance with the GLDCP, with 59 submissions received. The relevant requirements of the GLDCP have been considered in Council’s merit assessment and are generally complied with, based on the documents supporting the DA, and as described in the agreed conditions of consent.

2. The issues raised by residents that relate to proposed changes in operation of the site have been considered by Council in its merit assessment of the DA. The existing issues relating to illegal parking and safety have been considered where it relates to the DA and addressed in the conditions of consent. The DA is supported by a Social Impact Assessment, prepared by Key Urban Planning, dated 5 January 2023.

Pursuant to s 23 of the EPA Reg, the DA has satisfied the Court with the provision of consent from relevant landowners. All proposed signage and works are confirmed to the Court as being within the site or by agreement on Council owned land.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA2023/2007 can be granted consent.

13. 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.

14. The Court notes that:

1. Mid-Coast Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2023/2007 by the Supplementary Traffic Report, prepared by Traffic & Safety Solutions, dated 25 November 2023.

2. The Applicant has filed the amendments to the Development Application DA2023/2007 with the Court on 19 January 2024.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2023/2007, which seeks alterations and additions to an existing building, being for commercial additions and change of use including sale of liquor on Lot 2, Deposited Plan 1235034, also known as 203 Charlotte Bay Street, Charlotte Bay, is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 24 January 2024