Moon v Lake Macquarie City Council

Case •

[2023] NSWLEC 1016

•

17 January 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Moon v Lake Macquarie City Council [2023] NSWLEC 1016
Hearing dates: Conciliation on 26 October, 23 November, 13 and 16 December 2022
Date of orders: 17 January 2023
Decision date: 17 January 2023
Jurisdiction:Class 1
Before: Bradbury AC
Decision:

The Court orders:

(1) The Applicants are to pay those costs of the Respondent that have been thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA/1463/2021 for the subdivision of the land described as Lots 23, 24, 25 and 26 Section 11 DP 1996 and known as 7 and 11 Argyle St Bonnells Bay in accordance with the Community Land Development Act 2021 subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – residential subdivision – conciliation conference – agreement reached – orders made

Legislation Cited: Community Land Development Act 2021
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10
Environmental Planning and Assessment Regulation 2000, cll 49, 55
Environmental Planning and Assessment Regulation 2021, Sch 6 Pt 1 s 3
Land and Environment Court Act 1979, ss 34, 34AA
Lake Macquarie Local Environmental Plan 2014, cll 2.3, 2.6, 4.1, 4.1AA, 4.1A, 7.1, 7.21
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Texts Cited:

Lake Macquarie Development Control Plan 2014

Category:Principal judgment
Parties: Joanne Moon and Ian Moon (Applicants)
Lake Macquarie City Council (Respondent)
Representation:

Counsel:
P Jayne (Solicitor) (Applicant)
J McKelvey (Respondent)

Solicitors:
SWS Lawyers (Applicant)
Lake Macquarie City Council (Respondent)
File Number(s): 2022/161236
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This appeal concerns a development application (Council reference DA/1463/2021) (DA) for the subdivision of the land described as Lots 23, 24, 25 and 26 Section 11 DP 1996 known as Nos 7 and 11 Argyle St, Bonnells Bay (Site).

  2. The DA proposes the subdivision of the Site under the Community Land Development Act 2021 (CLD Act) to create five lots, comprising one community property lot of 349.1 m2 in area which comprises an open accessway to provide access to proposed Lots 3 and 4, which are located to the rear of the Site and four residential lots of between 397.2 m2 and 439.8 m2 in area (Proposed Development). There is an existing dwelling located on each of the two front lots, being proposed Lots 2 and 5 while proposed Lots 3 and 4 currently contain an existing garage. It is proposed that a dwelling will be erected on proposed Lots 3 and 4 in the future.

  3. The DA was made to the Council on 28 June 2021 and was notified to the adjoining properties to the east, west and north of the Site. No submissions were received.

  4. The DA was refused by the Council on 21 February 2022. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

  5. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

  6. The Court arranged a conciliation conference under ss 34 and 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held at the Site and at the Toronto Court House on 26 October 2022 and then by Microsoft Teams on 23 November, 13 and 16 December 2022. I presided over the conciliation conference.

  7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting development consent to the development application subject to conditions. 

  8. The final signed agreement was lodged with the Court on 9 January 2023 and is supported by a Jurisdictional Statement prepared by the parties which comprises Annexure B to the agreement. Under 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.

  9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow.

  10. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

  11. The Applicant made the DA with the consent of the owners of the Site in accordance with cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 s 3. The DA was made before, but had not been finally determined by, 1 March 2022 so the EPA Regulation continues to apply to the DA.

  12. The Land is within Zone R3 Medium Density Residential under the Lake Macquarie Local Environmental Plan 2014 (LEP). Development for various residential purposes is permitted with development consent on land within that zone.

  13. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone R3 Medium Density Residential are:

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

•  To provide a variety of housing types within a medium density residential environment.

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

•  To maintain and enhance the residential amenity and character of the surrounding area.

  1. In determining the DA, I have had regard to those objectives.

  2. Clause 2.6 of the LEP provides that land to which the LEP applies may be subdivided, but only with development consent.

  3. Clause 4.1 of the LEP sets minimum lot size requirements for the subdivision of land to which the clause applies, but does not apply to the subdivision of land under the CLD Act: see cl 4.1(4)(b).

  4. Clause 4.1AA of the LEP provides, relevantly, that the size of any lot resulting from a subdivision of land within Zone R3 Medium Density Residential under the CLD Act is not to be less than the minimum size shown on the Lot Size Map in relation to that land. The Minimum Lot Size Map identifies the Site as having a minimum lot size of 900 m2. The Proposed Development does not comply with this requirement as each of the proposed lots will be significantly less than 900 m2 in area – see par [2] above.

  5. Clause 4.1A of the LEP, however, operates as an exception to the lot size requirements of both cl 4.1 and cl 4.1AA. That clause provides as follows:

(1) – (2) …

(3)  Despite clauses 4.1 and 4.1AA, development consent may be granted to development on land in… Zone R3 Medium Density Residential that is both of the following—

(a)  the subdivision of land into 3 or more lots that each have frontage to a road,

(b) …

(4)  Despite subclause (3), development consent may be granted for development under subclause (3)(a), but only if the consent authority is satisfied that—

(a)  an attached dwelling, dwelling house or semi-detached dwelling could be appropriately located on each lot, or

(b)  …

  1. The parties agree, and I accept, that all lots in the Proposed Development will have frontage to a road, being either Argyle St or the open accessway shown in the Plan of Proposed Community Title Subdivision lodged with the amended DA. I am also satisfied that the area, location and configuration of the proposed rear lots, being Lots 3 and 4, means that an attached dwelling, dwelling house or semi-detached dwelling can be appropriately located on each of those lots. An existing dwelling is already located on the land that will become Lots 2 and 5.

  2. The parties agree, and I am satisfied, that the proposed subdivision of the land complies with the relevant requirements of the Lake Macquarie Development Control Plan 2014 (DCP). They also agree, and I accept, that the future erection of dwellings on proposed Lots 3 and 4 is capable of complying with the relevant requirements of the DCP.

  3. Clause 7.21 of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the services referred to in that clause that are essential for the development are available or that adequate arrangements have been made to make them available when required. The DA relates to land that is located in an existing urban area and I am satisfied that all of the specified essential services are available to the Site.

  4. The State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) precludes the granting of development consent unless the consent authority has considered whether the Site is contaminated. Section 4.6(2) of the Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4). The Proposed Development does not involve a change of use and the Site has been used for residential purposes for many years. The parties have also indicated that, as at 12 December 2022, the Site is not listed on the Environment Protection Agency Register of Contaminated Land. I am satisfied that a preliminary site investigation is therefore not required and that the Site is suitable for its proposed continued use for residential purposes.

  5. The LEP identifies the Site as being Class 5 land on the Acid Sulfate Soils Map contained within the LEP. Under cl 7.1(2) of the LEP, Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land require development consent. Clause 7.1(3) of the LEP provides that consent must not be granted for the carrying out of such works unless an acid sulfate soils management plan has been prepared for the proposed works. Clause 7.1(6) provides that development consent is not required to carry out any works if—

(1) the works involve the disturbance of less than 1 tonne of soil, and

(2) the works are not likely to lower the water table.

  1. The parties’ agreed position, which I accept, is that the only physical work proposed by the DA Proposed Development is the construction of the driveway and that there is therefore no need for the preparation of an acid sulfate soils management plan.

Conclusion

  1. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

  2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

  3. The Court notes that the Applicant has amended the DA with the agreement of Lake Macquarie City Council as consent authority, pursuant to cl 55 of the EPA Regulation, to rely on the amended plans and documents specified in condition 2 of Annexure A.

  4. The Court orders that:

  1. The Applicants are to pay those costs of the Respondent that have been thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

  2. The appeal is upheld.

  3. Development consent is granted to Development Application DA/1463/2021 for the subdivision of the land described as Lots 23, 24, 25 and 26 Section 11 DP 1996 and known as 7 and 11 Argyle St Bonnells Bay in accordance with the Community Land Development Act 2021 subject to the conditions in Annexure A.

A Bradbury

Acting Commissioner of the Court

Annexure A 

Annexure B 

*********

Amendments

19 January 2023 - Pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005, the judgment is amended by replacing the reference to “DA/1463/2001” in Annexure A and Annexure B with “DA/1463/2021”.

Decision last updated: 19 January 2023

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