Murdoch v Upper Hunter Shire Council

[2023] NSWLEC 1315

Land and Environment Court

New South Wales

Medium Neutral Citation:

Murdoch v Upper Hunter Shire Council [2023] NSWLEC 1315

Hearing dates:

Conciliation conference 23 May 2023

Date of orders:

21 June 2023

Decision date:

21 June 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA25-2022, for subdivision of one lot into two at Lot 22 DP 1235763, being 2912 New England Highway, Scone is approved subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – amended plans – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, Sch 6, ss 3, 23, 38

Land and Environment Court Act 1979, s 34

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

Upper Hunter Local Environmental Plan 2013, cll 2.7, 4.1, 6.10

Texts Cited:

Upper Hunter Development Control Plan 2015

Category:

Principal judgment

Parties:

Scott William Murdoch (First Applicant)
Rachel Ellen Murdoch (Second Applicant)
Upper Hunter Shire Council (Respondent)

Representation:

Counsel:
T Cork (Solicitor) (Applicants)
M Caban (Solicitor) (Respondent)

Solicitors:
McPhee Kelshaw (Applicants)
Local Government Legal (Respondent)

File Number(s):

2022/380001

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by Upper Hunter Shire Council of Development Application No of DA-25-2022. The development application seeks consent for subdivision of one lot into two at Lot 22 DP 1235763, known as 2912 New England Highway, Scone.

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 23 May 2023 and at which I presided. Prior to the conciliation, the parties had without prejudice discussions which resulted in amendments to the proposed development, in particular to the proposed access to the subdivision. At the conciliation conference, Council confirmed that the development application, as amended, resolved Council’s legislative and merit concerns with the development. As a result, the parties have reached agreement. That agreement is for the grant of the application, as amended, subject to conditions.

3. As the development application was lodged on 16 March 2022, Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) applies. The Council, as the relevant consent authority, has agreed under s 38 of EPA Regulation 2021 to the Applicant amending the DA.

4. As the presiding Commissioner, I am satisfied that the decision 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). I form this state of satisfaction on the basis that:

1. Pursuant to s 23 of the EPA Regulation 2021, the development application is made with the consent of the owners of the land.

2. The development application was notified between 23 March and 6 April 2022 in accordance with the requirements of the Upper Hunter Development Control Plan 2015 (DCP 2015), the EPA Act, and the EPA Regulation 2021. No submissions were received.

3. In determining the development application, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The site has been utilised as a site compound by the company completing the construction of the New England Highway bypass of Scone. The development application is supported by a Preliminary Desktop Contaminated Site Investigation (February 2020) and a Preliminary Site Investigation (September 2022) (PSI). I note that this application does not propose a change of use. Following soil sampling, the PSI concludes that the site has low potential for contamination risk.

4. The Upper Hunter Local Environmental Plan 2013 (LEP 2013) was amended on 26 April 2023 via Environmental Planning Instrument 650 & 831 (ALEP 2013). However, pursuant to cl 1.8A of ALEP 2013, because the development application was lodged before the commencement of ALEP 2013, and the application was not finally determined before it commenced, the development application must be determined as though ALEP 2013 had not commenced.

5. The land is zoned IN2 Light Industrial. In determining the development application, I have given consideration to the zone objectives. Pursuant to cl 2.7 of LEP 2013, subdivision is permitted with consent.

6. Pursuant to cl 4.1 of LEP 2013, a minimum lot size of 1 hectare applies to the site. Proposed new Lot 1 will have an area of 1 hectare. Proposed new Lot 2 will have an area of 1.53 hectares. Clause 4.1 is satisfied.

7. Pursuant to cl 6.10 of LEP 2013, I am satisfied that the services listed that are essential for the development are available or that adequate arrangements have been made to make them available when required.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. The Court orders that:

1. The appeal is upheld.

2. Development Application DA25-2022, for subdivision of one lot into two at Lot 22 DP 1235763, being 2912 New England Highway Scone is approved subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

22.380001 Annexure A

**********

Decision last updated: 21 June 2023