Moore v Shoalhaven City Council

[2024] NSWLEC 1664

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moore v Shoalhaven City Council [2024] NSWLEC 1664

Hearing dates:

Conciliation conference on 12 September 2024

Date of orders:

22 October 2024

Decision date:

22 October 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application SF10955 for a 2 lot Torrens Title subdivision and associated driveway, onsite effluent disposal and landscaping works (the Proposed Development) on land known as 57 Wandean Road, Wandandian NSW 2540, also known as Lot 1 in Deposited Plan 1268021 is determined by grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – Torrens title subdivision – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016 s 7.3

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7

Land and Environment Court Act 1979 s 34

Rural Fires Act 1997 s 100B

Shoalhaven Local Environmental Plan 2014 cll 2.6, 4.2B, 7.1, 7.5, 7.6, 7.11

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

Texts Cited:

Shoalhaven City Council Community Participation Plan 2019

Category:

Principal judgment

Parties:

Adam Moore (First Applicant)
Stacey Moore (Second Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
A Kliese (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2024/150241

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Shoalhaven City Council, of Development Application SF10955, which seeks consent for a two-lot Torrens title subdivision into three rural residential lots with associated driveway, onsite effluent disposal and landscaping works at 57 Wandean Road, Wandandian, legally known as Lot 1 in DP 1268021.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 September 2024. Prior to this conference, by leave of the Court, the application was amended to reduce the subdivision from three lots to two.

4. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified from 12 September to 28 September 2022, and further from 18 April to 4 May 2023 in accordance with the Shoalhaven City Council Community Participation Plan 2019. No submissions were made during this time.

8. As amended, the proposed subdivision is for two rural residential lots. The subject site is zoned RU4 Primary Production Small Lots under the Shoalhaven Local Environmental Plan 2014 (SLEP), within which subdivision is permissible with consent pursuant to cl 2.6. The proposed development is consistent with the objectives of this zone.

9. Pursuant to SLEP cl 4.2B, land identified as ‘Locality 3’ on the lot size map maybe subdivided into lots with a minimum lot size of 2 hectares and a maximum of one lot per 10 hectares, or in the case of a lot with an area of between 4 and 19 hectares, into no more than 2 lots. This site is identified as ‘Locality 3’ and has an area of 7.88ha. Subsequently, the subdivision is for no more than two lots, both of which are between 2 and 10ha (Lot 1, 2.21ha and Lot 2, 5.67ha) and the proposal complies with the minimum lot size requirements of SLEP cl 4.2B.

10. Pursuant to SLEP cl 7.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, and is approximately 400m away from land that is mapped as Class 2 and 3. From the parties submission and the survey plan, I accept that the property is above 5m Australian Height Datum and that an acid sulfate soils management plan is not required, and subsequently, that the requirements of SLEP cl 7.1 are met.

11. Pursuant to SLEP cl 7.5, the site is mapped as ‘Biodiversity – habitat corridor’ on the Terrestrial Biodiversity Map. A Flora and Fauna Assessment by Fraser Ecological Consulting dated 6 August 2024 (the Flora and Fauna Assessment) has been prepared that concludes that this proposal is unlikely to have any adverse impact upon threatened species, their habitats, populations or endangered ecological communities which form part of the habitat corridor. From this, the parties’ submission and the agreed conditions of consent, I accept that the requirements of SLEP cl 7.5 are met with this application.

12. SLEP cl 7.6 applies to the site as it includes a ‘Watercourse Category 1’ on the Riparian Lands & Watercourses map. This mapped watercourse generally aligns with the existing large dam on the east of the site. From the parties’ submission, the subdivision plan, and the proposed conditions of consent, I accept that the proposed development is not likely to have an adverse impact on this watercourse and that the requirements of SLEP cl 7.6 have been met.

13. SLEP cl 7.11 requires that development consent must not be granted unless the consent authority is satisfied that all essential services are available or that adequate arrangements have been made to make them available. Based on the parties’ submission and the following documents, I accept that adequate arrangements have been made to make all essential services available as per cl 7.11:

1. Water Development Notice from Shoalhaven Water dated 20 September 2022,

2. report by AKH Design Services dated 21 August 2024,

3. Soil and Site Assessment for Onsite Wastewater Disposal by Harris Environmental Consulting dated March 6 2024 and,

4. the subdivision plans.

14. The land is identified as bushfire prone land and as such a Bushfire Safety Authority must be obtained before developing this land, pursuant to s 100B of the Rural Fires Act 1997. To that end, General Terms of Approval (GTAs) were issued by the NSW Rural Fire Service on 19 April 2023. These GTAs have been incorporated into the agreed conditions of consent.

15. Pursuant to s 7.3 of the Biodiversity Conservation Act 2016, from the parties’ submission and the Flora and Fauna Assessment, I accept that the proposal is unlikely to have a significant impact on any listed threatened species, populations and communities, and that a biodiversity assessment report is not required for the proposed development.

16. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended use.

Conclusion

17. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

18. The Court orders:

1. The appeal is upheld.

2. Development Application SF10955 for a 2 lot Torrens Title subdivision and associated driveway, onsite effluent disposal and landscaping works (the Proposed Development) on land known as 57 Wandean Road, Wandandian NSW 2540, also known as Lot 1 in Deposited Plan 1268021 is determined by grant of consent subject to the conditions at Annexure A.

……………………….

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 22 October 2024