MVC Nominees Pty Ltd v Shoalhaven City Council

[2024] NSWLEC 1123

Land and Environment Court

New South Wales

Medium Neutral Citation:

MVC Nominees Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1123

Hearing dates:

Conciliation conference on 29 January 2024

Date of orders:

20 March 2024

Decision date:

20 March 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants are to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed or assessed.

(2) The Appeal is upheld.

(3) Development Application DA-22/1134, as amended, for the demolition of existing structures and construction of a mixed use development including a centre based childcare facility for 114 children, 2 commercial premises (237.6m²), shop top housing comprising 13 dwellings and two levels of basement car parking with stratum and strata subdivision at 89 South Street, Ulladulla, NSW, 2539, legally known as Lot 20 Section 2 in Deposited Plan 759018, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – child care centre – shop top housing – amended plans – conciliation conference – agreement reached – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, ss 34, 34AA

Education and Care Services National Regulations 2011
Environmental Planning and Assessment Regulation 2021, s 38
Shoalhaven Local Environmental Plan 2014, cll 4.3, 4.6, 5.21, 7.1, 7.2, 7.11
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65)
State Environmental Planning Policy (Resilience and Hazards), Chapter 2, ss 2.11, 2.14, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.48, and Ch 3, ss 3.23

Category:

Principal judgment

Parties:

MVC Nominees Pty Ltd as the trustee for MVC Unit Trust (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
A Galasso (Applicant)
A Menyhart (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
BAL Lawyers (Respondent)

File Number(s):

2023/239248

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by MVC Nominees Pty Ltd as the trustee for MVC Unit Trust (the Applicant). The appeal is against Shoalhaven City Council (the Respondent) for the deemed refusal of Development Application DA22/1134 which was lodged on 22 February 2022.

2. The Development Application seeks Development Consent for the demolition of existing structures and construction of a mixed use development including a centre based childcare facility for 114 children, 2 commercial premises (237.6m²), shop top housing comprising 13 dwellings and two levels of basement car parking with stratum and strata subdivision at 89 South Street, Ulladulla, NSW, 2539. The Site is legally identified as Lot 20 Section 2 in Deposited Plan 759018.

3. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 29 January and 15 February 2024.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions.

5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. Shoalhaven City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicants amending the Development Application.

6. Pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

7. 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.

8. 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Shoalhaven Local Environmental Plan 2014 (SLEP 2014), the subject site is zoned E2 Commercial Centre. Centre-based child care facilities, commercial premises and shop top housing are permissible, with Development Consent, in the zone. In determining the Development Application, the parties have had regard to the objectives of the zone.

2. Clause 4.3 (Height of Buildings) applies to the Site and prescribes a maximum building height of 11 metres under Clause 4.3(2) of the SLEP 2014. There is an exceedance by the roofline, rooftop communal open space, lift and stair overruns, pergola elements and part of the roof structure at the northern and eastern ends as shown on Drawing DA-142 of the architectural plans. Overall, the maximum building height of the proposed development is 14.84 metres, which is a proposed exceedance of 34.9% to the height development standard.

3. The Amended DA relies on an updated written variation request pursuant to Clause 4.6 (Exceptions to development standards), which addresses the matters required to be demonstrated in clause 4.6(3). The parties agree that the written request satisfies the requirements of Clause 4.6 of the SLEP 2014 and demonstrates that compliance with the standard is unnecessary in this instance and that there are sufficient environmental planning grounds to justify varying the standard in this instance.

4. The parties agree that the development application, as amended, is in the public interest because it consistent with the objectives of the height standard provided in clause 4.3(1) and the objectives of the E2 Zone. The concurrence of the Secretary may be assumed in accordance with Planning Circular PS 20-002 Variations to Development Standards, such that clause 4.6(4)(c) is met.

5. I am satisfied that the written request contains the required material to form the basis of such a request. The written request covers the objectives of the development standard, the objectives of the zone as well as the various amenity considerations that arise from those objectives. I am satisfied that the decision of the parties to uphold the written request is a decision that the Court could have made.

6. Clause 5.21 (Flood Planning) of SLEP 2014 applies to the Site as it is identified as being part of the Millard’s Creek Flood Planning Area. The Respondent has confirmed that a flood study is not required for this development as the Respondent has recently endorsed a Millard’s Creek Flood Study (2021) which includes the Site. The flood evacuation plans have been considered and are approved as detailed in Condition 1 of Annexure A.

7. Clause 7.1 (Acid Sulfate Soils) of SLEP 2014 maps the Site as Class 5 Acid Sulfate Soils. No works are proposed within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum (AHD) and the development is not likely to lower the water table below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land. The requirements of this clause have been met.

8. Clause 7.2 (Earthworks) of SLEP 2014 applies to the Site. The matters arising under clause 7.2(3) have been considered. The extent of the earthworks proposed by the development relates to the excavation for the two basement levels. The proposed development was designed to consider the results and recommendations of the Geotechnical Assessment Report prepared by NG Child & Associates dated 28 January 2022. The proposed development will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area. The proposed excavation is consistent with the Site’s context and is in accordance with Council’s current and proposed planning strategies. The destination of any excavated material is to be in accordance with the Agreed Conditions. The parties agree that it is unlikely that excavation will lead to the disturbance of relics as the Site is not known to be situated within an area of archaeological significance, and the earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas due to the location of the Site.

9. Clause 7.11 (Essential Services) of SLEP 2014 applies to the Site. The Site currently contains residential dwellings and a commercial shed in an established and developed area. The Site is currently connected to all essential services, including water, electricity, sewer and telecommunications. Conditions 7 and 103, in Annexure A, require the relevant certificates and approvals be obtained from energy and water suppliers, and the construction certificate plans must be approved by Shoalhaven Water. Suitable vehicular access is proposed under the Amended development application. The parties agree that the essential services will be available to the development when required.

10. The Development Application was notified to nearby properties of the Site between 23 March 2022 and 6 April 2022. Four submissions were received in relation to the proposed development. As a result of amendments to the proposal, the amended application was renotified in between 7 June 2023 to 23 June 2023. One further submission was received. The issues raised were considered by the parties.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65)

1. The development application was lodged on 10 February 2022, prior to the commencement of the Housing Amendment SEPP. This appeal was commenced on the deemed refusal of the development application, as such, the development application has not yet been fully determined and the former SEPP 65 continues to apply. The proposed development includes a number of residential apartments and is therefore subject to an assessment pursuant to SEPP 65.

2. The Amended development application has been designed by a registered architect and is subject of an amended design verification statement which sets out the assessment against the relevant principles and criteria demonstrating that due regard to the ADG has been given. An assessment against the ADG is also provided by the applicant in the Statement of Environmental Effects.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

1. Chapter 2 of the Resilience and Hazards SEPP applies to the Site as it is mapped as “coastal use area” by the Coastal Use Area Map. An assessment of the proposed development against s 2.14, of Chapter 2, of the Resilience and Hazards SEPP is provided in the Statement of Environmental Effects. The parties agree that the development will not have an adverse impact on the matters raised in s 2.11(a) and will maintain the visual amenity and scenic quality of the surrounding environment. As a result of this review, the relevant matters have been considered.

2. Consideration has also been given to whether the Site is contaminated as required by s 4.6 of the Resilience and Hazards SEPP. The Applicants provided a Preliminary Site Investigation which concludes that the Site is considered suitable for the proposed land use. A further report was prepared as an Addendum Site Investigation report dated 4 October 2023. The concluded that the site is suitable for the proposed development and land use.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

1. The required consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP). The parties agree that the Development Application has addressed the necessary matters in Chapters 2 and Chapter 3 of the ISEPP.

2. Section 2.48 applies to the development application as the development application proposes excavation works for the two basement levels to a maximum depth of approximately 6.5 metres within 2 metres of an electricity distribution pole. The development application was referred to Endeavour Energy (“EE”) and conditional approval has been provided. Condition 48 of Annexure A requires that plan and documents be submitted to the Certifier demonstrating compliance with EE’s conditions prior to the issue of a construction certificate.

3. Chapter 3 of the ISEPP which relates to Education Establishment and Child Care Facilities. This includes compliance assessment and responses to the various considerations, and numerical requirements, in the Child Care Planning Guidelines, as required under s 3.23 of the ISEPP.

4. Compliance with Chapter 3 is addressed in the Addendum Statement of Environmental Effects prepared by MMJ Wollongong which forms part of the proposal. The Amended development application provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations.

5. The Education and Care Service National Regulations 2011 also apply to the development. The required assessment of compliance has been undertaken and is satisfied.

6. Where appropriate, the parties have agreed on conditions around the operation of the proposed centre and these are included in Annexure A. On this basis, I agree that the various aspects of the ISEPP have been met.

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

1. The development application was lodged on 10 February 2022 and this appeal was commenced on the deemed refusal of the development application. As such, the development application has not yet been fully determined and the former BASIX SEPP continues to apply. The Amended development application is accompanied by an amended BASIX Certificate No. 1270637M_02.

9. 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.

10. 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.

Orders

11. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants are to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed or assessed.

2. The Appeal is upheld.

3. Development Application DA-22/1134, as amended, for the demolition of existing structures and construction of a mixed use development including a centre based childcare facility for 114 children, 2 commercial premises (237.6m²), shop top housing comprising 13 dwellings and two levels of basement car parking with stratum and strata subdivision at 89 South Street, Ulladulla, NSW, 2539, legally known as Lot 20 Section 2 in Deposited Plan 759018, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Stuart Harding

Acting Commissioner of the Court

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Annexure A

Decision last updated: 20 March 2024