Nakar Property Pty Ltd v Wingecarribee Shire Council

[2024] NSWLEC 1206

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nakar Property Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1206

Hearing dates:

Conciliation conferences on 30 January 2024, 7 March 2024 and 21 March 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant shall pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,000 within 14 days of the date of this order.

(2) The applicant is directed to file the amended development application the subject of Order (4) within 7 days of the date of this Order.

(3) The appeal is upheld.

(4) Development Application No 24/0055 for the construction of a natural gas-powered electricity generating plant to provide onsite power to the Southern Highlands Data Centre on land at 30 Douglas Road, Moss Vale NSW 2577 (Lot 40 Deposited Plan 1288692), as amended, is determined by the grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – gas powered - electricity generating power plant – data centre - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.13

Land and Environment Court Act1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.61, 6.63, 6.64

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.36

Wingecarribee Local Environmental Plan 2010 cl 7.3

Category:

Principal judgment

Parties:

Nakar Property Pty Ltd (Applicant)
Wingecarribbee Shire Council (Respondent)

Representation:

Counsel:
A Kliese (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Shaw Reyonlds Lawyers (Applicant)
Pikes and Verekers (Respondent)

File Number(s):

2023/304456

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 24/0055. The development application seeks consent for the construction of a natural gas-powered electricity generating plant to provide onsite power to the Southern Highlands Data Centre (DA) at 30 Douglas Road, Moss Vale (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending Development Application No. 24/0055 in accordance with the documents listed at [20] (amended DA). 

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 January 2024 and subsequent conferences on 7 March and 21 March 2024. I have presided over the conciliation conference.

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. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 17 July 2023. The Respondent notified the DA between 8 August 2023 to 22 August 2023. One submission was received.

10. As the parties have entered into an agreement, Council, as the consent authority, has considered the concerns raised.

Wingecarribee Local Environmental Plan 2010

11. The site is zoned E4 General Industrial under the Wingecarribee Local Environmental Plan 2010 (WLEP). The proposed development for electricity generating works is permitted with consent and I have had regard to the objectives of the zone.

12. Clause 7.3 Earthworks applies to the amended DA. The DA is accompanied by Civil Plans prepared by Civil Development Solutions dated 22 August 2023 (civil plans) and a Statement of Environmental Effects prepared by Premise dated 15 September 2023 (SEE) which address the provisions. I accept the parties’ agreement that the provisions have been considered.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. In accordance with s 2.36 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), the amended DA is permissible with consent on the site.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the amended DA.

15. Chapter 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.61, 6.63 and 6.64 apply as the site is located within the Sydney Drinking Water Catchment. I have considered the SEE, civil plans, Drainage Concept Report & Music Model Assessment Prepared by Civil Development Solutions dated June 2023, conditions of consent at Attachment A and jurisdictional statement. The parties agree and I accept that the amended DA satisfies the provisions within Ch 6. On this basis, I am also satisfied that concurrence is not required in accordance with s 6.64(4).

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA is supported by a Phase 1 Environmental Due Diligence Assessment prepared by Environmental Resource Management Australia dated December 2006 (Environmental Report). The Environmental Report found that there may be low levels of contamination on site which were limited and controlled. The Environmental Report did not identify any issues or make any recommendations for industrial use of the site. Accordingly, the parties submit and I accept that the provisions of s 4.6 of SEPP RH have been addressed.

Conclusion

17. 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’ decision.

18. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

19. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

20. The Court notes that the respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No 24/0055 in accordance with the documents listed below:

1. Air Quality Impact Assessment prepared by Todoroski Air Sciences dated 25 January 2024.

2. Amended Architectural Plans and Landscape Plans prepared by Nordon Jago Architects comprising:

1. Drawing number DA.000 (Front Cover and Drawing List), Revision L, dated 7 February 2024.

2. Drawing number DA.001 (Site and Site Location), Revision J, dated 7 February 2024.

3. Drawing number DA.002 (Ground Floor Plan), Revision K, dated 7 February 2024.

4. Drawing number DA.003 (Roof Plan), Revision J, dated 5 February 2024.

5. Drawing number DA.004 (Elevations), Revision G, dated 4 September 2023.

6. Drawing number DA.005, Revision I (Sections and Elevations), dated 19 January 2024.

7. Drawing number DA.006, Revision B (Landscaping), dated 5 February 2024.

3. Operational Environmental Management Plan Version 1.4 dated 7 February 2024, prepared by Square Energy.

4. Additional Information comprising:

• Explanation regarding greenhouse gas calculation by Todoroski Air Sciences dated 8 February 2024

• Correspondence with Endeavour Energy including Options Screening Report by Endeavour Energy dated 26 May 2023

• Explanation which quantifies other energy generation methods by Todoroski Air Sciences dated 8 February 2024

Orders:

21. The Court orders:

1. The Applicant shall pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,000 within 14 days of the date of this order.

2. The applicant is directed to file the amended development application the subject of Order (4) within 7 days of the date of this Order.

3. The appeal is upheld.

4. Development Application No 24/0055 for the construction of a natural gas-powered electricity generating plant to provide onsite power to the Southern Highlands Data Centre on land at 30 Douglas Road, Moss Vale NSW 2577 (Lot 40 Deposited Plan 1288692), as amended, is determined by the grant of consent, subject to the conditions set out in Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 19 April 2024