Moss Vale Highlands Pty Ltd as trustee for the Moss Vale Highlands Unit Trust v Wingecarribee Shire Council

[2024] NSWLEC 1084

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moss Vale Highlands Pty Ltd as trustee for the Moss Vale Highlands Unit Trust v Wingecarribee Shire Council [2024] NSWLEC 1084

Hearing dates:

Conciliation conference on 6 February 2024

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application number DA23/0517, as amended, for demolition of existing structures, removal of trees and vegetation, site remediation, construction of a multi-dwelling housing development comprising of 50 new dwellings and associated landscape and civil works on land identified as Lot 1 in Deposited Plan 943268 & Lot 102 in DP 246679 commonly known as Nos 603 Argyle Street and 14 Mann Crescent, Moss Vale, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.61, 6.63, 6.64
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
Wingecarribee Local Environmental Plan 2010, cll 2.7, 5.10, 7.3.

Category:

Principal judgment

Parties:

Moss Vale Highlands Pty Ltd as trustee for the Moss Vale Highlands Unit Trust (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
J Farrell (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/4342

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Moss Vale Highlands Pty Ltd as trustee for the Moss Vale Highlands Unit Trust (the Applicant). The appeal is against Wingecarribee Shire Council (the Respondent) for the deemed refusal of Development Application DA23/0517, lodged on 2 November 2022.

2. The Development Application seeks consent for demolition of existing structures, removal of trees and vegetation, site remediation, construction of a multi-dwelling housing development comprising of 50 new dwellings and associated landscape and civil works on Lot 1 in DP 943268. The site is also known as 603 Argyle Street, Moss Vale and Lot 102 in DP 246679, known as 14 Mann Crescent, Moss Vale.

3. This matter was listed for a hearing between the parties to commence on 6 February 2024. Prior to the hearing commencing, the parties were able to reach an in principle agreement. The hearing was adjourned and the Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act).

4. At the conciliation conference, the parties reached an in principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to the development application, subject to agreed outcomes and conditions. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. The Site is zoned R3 – Medium Density Residential pursuant to the Wingecarribee Local Environmental Plan 2010 (WLEP 2010). Development for the purposes multi dwelling housing is permissible, with development consent, in the Zone. As required by the WLEP 2010, regard has been given to the objectives of the zone in determining the Development Application.

2. Clause 2.7 of WLEP provides that demolition is permissible with consent. Demolition is proposed as part of the Development Application and has been assessed. Appropriate conditions have been included in the agreed conditions in Annexure A.

3. Clause 5.10 of the WLEP 2010 relates to Heritage Conservation. The clause requires consideration of the effect of the proposed development on the heritage significance of an item or area. The Heritage Map in WLEP 2010 does not show that the Site is in a heritage conservation area or contains a heritage item. However, the Site is within 100 metres of 3 heritage items. Consideration has been given to the effect of the proposed development with regards to heritage impacts . The parties agree that the heritage outcomes are acceptable.

4. Clause 7.3 of the WLEP 2010 is applicable as the development application proposes earthworks that alter the ground level by more than 600 millimetres. The Development Application is accompanied by an Amended Stormwater Report prepared by MRC Consulting Engineers which demonstrates that the proposed development is consistent with cl 7.3 of WLEP 2010. This includes the outcomes that the development and stormwater management system are designed to provide a higher level of stormwater treatment and reduce the post development discharge rates. The agreed conditions of consent include conditions that appropriately regulate the proposed excavation and these have been included in the Development Consent (Annexure A). The matters listed under cl 7.3(3) of the WLEP 2010, with respect to earthworks, have been considered.

5. The Original DA, as lodged, was notified from 28 November 2022 to 4 January 2023 in accordance with Council policy. A total of four submissions were made in relation to the original and subsequent notification periods. The parties agree that the written submissions of objectors have been considered and the proposal, as amended, is responsive to those submissions.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

6. The Proposed Development is a ‘BASIX affected building’ within the meaning of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Accordingly, an amended BASIX Certificate number 1336893M_04 has been provided in relation to the proposal.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

7. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) (Koala habitat protection 2021) applies to the Site as it is in the Wingecarribee Local Government Area. The Applicant’s Flora and Fauna Assessment was prepared by Kat Duchatel of Ecologique, who holds a Bachelor of Environmental Science and is Biodiversity Assessment Method accredited. The assessment states that whilst the koala was recorded as a threatened species within a 10km radius of the Site, koalas have “specific habitat requirements that are absent from the subject site”.

8. Section 6.6 of the Biodiversity and Conservation SEPP (Water quality and quantity) requires the Respondent to consider the impacts of the Proposed Development on various aspects of water quality and quantity specified in the section. The parties have considered the elements of these provisions in determining the proposal and note that the Site will be connected to Council’s stormwater system. There are conditions of consent requiring that the runoff of stormwater from the Site is adequately controlled. There will be no impact on waterflow in a natural waterbody.

9. Section 6.7 of the Biodiversity and Conservation SEPP (Aquatic ecology) requires consideration of the impact of the proposed development on various aspects of aquatic ecology specified in the clause. The parties have considered the requirements of this section and are satisfied that the required matters have been addressed. The parties have considered the direct, indirect and cumulative adverse impacts on terrestrial, aquatic or migratory animals or vegetation, amongst other things, and consider that they are acceptable. This includes consideration of the Applicant’s Flora and Fauna Report.

10. In respect to ss 6.8, 6.9, 6.10, 6.11, 6.61, 6.63 and 6.64, the parties have considered the Flora and Fauna and Stormwater reports along with design outcomes as required by the section. The parties have also considered the advice from Water NSW that the Second Amended DA can achieve a NorBE on water quality, which is assessed by Water NSW using the NorBE Tool published by Water NSW, provided appropriate conditions are included in any development consent and are implemented. The Respondent has also obtained the concurrence of the Regulatory Authority, being Water NSW, as required by s 6.64.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), consideration has been given to whether the Site is contaminated. A detailed site investigation and remedial action plan have been submitted with the Original DA. The Statement of Environmental Effects states that these documents conclude that the Site can be made suitable for the proposed use. Remediation will occur prior to the issuing of a construction certificate and will be validated prior to the occupation certificate. As a result of this documentation, I am satisfied that the requirements of the Resilience and Hazards SEPP are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

12. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) (Development with frontage to classified road) states that the Respondent must not grant consent to a development that has a frontage to a classified road unless certain criteria are satisfied. As the Site is located adjacent to a classified road; this section applies to the proposal. The amended Transport Impact Assessment discusses the criteria and the parties agree that the criteria have been assessed and satisfied.

7. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. 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’ agreement. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are as follows.

Orders

9. The Court orders that:

1. The appeal is upheld.

2. Development Application number DA23/0517, as amended, for demolition of existing structures, removal of trees and vegetation, site remediation, construction of a multi-dwelling housing development comprising of 50 new dwellings and associated landscape and civil works on land identified as Lot 1 in Deposited Plan 943268 & Lot 102 in DP 246679 commonly known as Nos 603 Argyle Street and 14 Mann Crescent, Moss Vale, is determined by the grant of development consent subject to the conditions in Annexure A.

……………………….

Stuart Harding

Acting Commissioner of the Court

Annexure A (1289343, pdf)

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Decision last updated: 29 February 2024