NHP Berry HL762 Pty Ltd v Shoalhaven City Council

[2024] NSWLEC 1786

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

NHP Berry HL762 Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1786

Hearing dates:

Conciliation conferences on 20-21 November 2024

Date of orders:

06 December 2024

Decision date:

06 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

1) The appeal is upheld.

2) Development Application SF10965, as amended, for the staged residential subdivision to create 118 Torrens title allotments at Lot 762 and Lot 763 of DP 1224932 Hitchcocks Lane, Lot 15 and 16 of DP1188080 Princes Highway and Lot 6 of DP1070867 Princes Highway, Berry is granted consent, subject to the conditions of consent annexed at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – subdivision - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16,4.46, 7.4, 8.7

Land and Environment Court Act 1979, s 34, 39

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

Shoalhaven Local Environmental Plan 2014, cll 2.3, 4.1, 4.1E, 5.3, 5.16, 5.21, 7.1, 7.2, 7.6, 7.11

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

State Environmental Planning Policy (Transport and Infrastructure 2021, 2.48, 2.119, 2.120, 2.138

Texts Cited:

NSW Department of Planning, Industry and Environment - Development Near Rail Corridors and Busy Roads Guidelines 2008

Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

NHP Berry HL762 Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
S Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens (Respondent)

File Number(s):

2023/343952

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application no. SF10965 for the staged residential subdivision to create Torrens title allotments, 1 drainage reserve lot, road works, tree removal, construction of noise walls and associated civil infrastructure and landscaping (DA) on Lot 762 and Lot 763 in DP 1224932, Lot 15 and Lot 16 in DP 1188080, and Lot 6 in DP 1070867 Princes Highway, Berry (site).

2. The proposed works, as amended are:

• Staged (five stages) residential subdivision to create 117 Torrens title allotments and 1 drainage reserve lot;

• Removal of trees;

• Construction of roads;

• Civil and bulk earthworks;

• Bioretention basin;

• Construction of acoustic walls; and

• Landscaping and associated civil works.

3. The proceedings were set down for a hearing on 20-22 November 2024. The parties agreed that following the joint conferencing of the experts, further changes to the plans and the agreed conditions of consent, that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

4. The Court granted the request and arranged a conciliation conference between the parties, which was held on 21-22 November 2024. I presided over the conciliation conference.

5. 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 SF10965 in accordance with the documents listed below (amended DA):

Drawing No / Rev	Drawing Title	Prepared By	Date
Subdivision Plan
N254243-SK01/P24A	Subdivision Sketch	Allen Price and Scarratts Pty Ltd	14/11/2024
Construction Access Plan
N254243-423/P6A	Stage 1 Construction Access	Allen Price and Scarratts Pty Ltd	15/11/2024
N254243-424/P6A	Stage 2 Construction Access	Allen Price and Scarratts Pty Ltd	15/11/2024
N254243-425/P6A	Stage 3 Construction Access	Allen Price and Scarratts Pty Ltd	15/11/2024
N254243-426/P6A	Stage 4 Construction Access	Allen Price and Scarratts Pty Ltd	15/11/2024
N254243-427/P6A	Stage 5 Construction Access	Allen Price and Scarratts Pty Ltd	15/11/2024
Preliminary Engineering Plans
N25424-401/P9A	Cover Sheet and Drawing Index	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-402/P9A	Preliminary Roads and Drainage Layout Plan Sheet 01	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-403/P9A	Preliminary Roads and Drainage Layout Plan Sheet 02	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-404/P9A	Preliminary Roads and Drainage Layout Plan Sheet 03	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-405/P9A	Preliminary Roads and Drainage Layout Plan Sheet 04	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-406/P9A	Preliminary Roads and Drainage Layout Plan Sheet 05	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-407/P9A	Preliminary Road Long Sections Plan Sheet 01	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-408/P9A	Preliminary Road Long Sections Plan Sheet 02	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-409/P9A	Preliminary Road Long Sections Plan Sheet 03	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-410/P9A	Preliminary Road Long Sections Plan Sheet 04	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-411/P9A	Preliminary Road Long Sections Plan Sheet 05	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-412/P9A	Preliminary TYP Road Cross Sections Plan Sheet 01	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-413/P9A	Preliminary TYP Road Cross Sections Plan Sheet 02	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-414/P9A	Preliminary Sewer Concept Layout Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-415/P9A	Preliminary Cut and Fill Bulk Earthworks Layout Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-416/P9A	Preliminary Bulk Earthworks Cross Sections Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-417/P9A	Preliminary Tree Management Layout Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-418/P9A	Preliminary Sight Distance Layout Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-419/P9A	Preliminary Noise Wall Layout Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-420/P9A	Preliminary Noise Wall Long Sections Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-421/P12A	Preliminary On Street Car Parking Layout Plan	Allen Price and Scarratts Pty Ltd	15/11/2024
N25424-422/P8A	On Street Vehicle Spacing Assessment	Allen Price and Scarratts Pty Ltd	15/11/2024
Stormwater Plans
441-01/K3B	Title Sheet – Overall Plan and Sheet Index	Southeast Engineering and Environmental	15/11/2024
441-02/K3B	Stormwater Management Site Plan	Southeast Engineering and Environmental	15/11/2024
441-03/K3B	Riparian Land as Defined in Clause 7.6 of SLEP	Southeast Engineering and Environmental	15/11/2024
441-04/K3B	Stormwater Detail 1 – Drainage Channel	Southeast Engineering and Environmental	15/11/2024
441-05/K3B	Stormwater Detail 2 – Channel and Water Quality Treatment	Southeast Engineering and Environmental	15/11/2024
441-06/K3B	Bioretention and Detention System Plan	Southeast Engineering and Environmental	15/11/2024
441-07/K3B	Bioretention Typical Section A	Southeast Engineering and Environmental	15/11/2024
441-08/K3B	Northern Access	Southeast Engineering and Environmental	15/11/2024
441-09/K3B	1% AEP Extents and Levels	Southeast Engineering and Environmental	15/11/2024
441-10/K3B	Typical Channel Section C	Southeast Engineering and Environmental	15/11/2024
441-11/K3B	Soil and Water Management – Concept	Southeast Engineering and Environmental	15/11/2024
441-12/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-13/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-14/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-15/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-16/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-17/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-18/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-19/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-20/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-21/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-22/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-23/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
441-24/K3B	Drainage Longsection	Southeast Engineering and Environmental	15/11/2024
Landscape Master Plan
1.0/J	Analysis	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
2.0/J	Approach	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
3.0/K	Landscape Master Plan	Taylor Brammer Landscape Architects Pty Ltd	13/11/2024
3.1/J	Typical Streetscape Sections	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
3.2/K	Drainage Reserve Sections	Taylor Brammer Landscape Architects Pty Ltd	13/11/2024
3.2/K	Drainage Reserve Sections	Taylor Brammer Landscape Architects Pty Ltd	13/11/2024
3.3/K	Landscape Screen Sections	Taylor Brammer Landscape Architects Pty Ltd	13/11/2024
4.0/J	Entries	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
4.2/J	Main Entry	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
4.3/J	Secondary Entry	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
4.4/J	Pedestrian Access	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
4.5/B	Inner Protection Zone (IPA)	Taylor Brammer Landscape Architects Pty Ltd	13/11/2024
5.0/J	Materials Palette	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
6.0/J	Planting Strategy	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
6.0/J	Planting Strategy	Taylor Brammer Landscape Architects Pty Ltd	12/11/2024
Document			Date
Voluntary Planning Agreement Letter of Offer prepared by New Horizon Properties			21 November 2024
Bush Fire Assessment Report prepared by Bushfire and Evacuation Solutions			13 November 2024

6. 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 DA and granting development consent subject to conditions of consent.

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

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 development application, as provided at Tab 1 of the Class 1 Application and from Transport for NSW (TFNSW) at Tab 2 of Exhibit CM-2. The Respondent has granted its consent for the APZ works on its land through the agreement.

10. The DA was lodged to the Respondent on 14 October 2022. The Respondent notified the development application between 26 October 2022 to 9 November 2022 and 17 November 2022 to 1 December 2022. 27 submissions were received. The September amended DA was notified to objectors between 4 November 2024 to 18 November 2024. The Court and parties benefited from hearing oral concerns raised by two objectors at the commencement of the hearing on 20 November 2024.

11. As the parties have reached agreement, the concerns raised are to be considered by the parties. I accept the oral submissions given at the hearing and the parties advice to the Court at paragraph 63 of the jurisdictional statement that the issues raised have been considered.

12. A voluntary planning agreement letter of offer dated 21 November 2024 (VPA letter) made pursuant to s 7.4 of the EPA Act forms part of the DA. I accept the parties’ agreement that the VPA letter has been considered.

13. I accept that the parties have considered the provisions of s 4.15 of the EPA Act as set out in the jurisdictional statement.

Integrated Development

14. The DA is integrated development pursuant to s 4.46 of the EPA Act and requires a bushfire safety authority from the NSW Rural Fire Service in accordance with s 100B of the Rural Fires Act 1997 (Fires Act).

15. The relevant authority body, Rural Fire Service (RFS), issued General Terms of Approval (GTA). In response to the filing of the appeal, RFS indicated in correspondence that they considered the Court to be the consent authority. Whilst there are no amended GTAs reflecting the amended DA, there is no objection from RFS. Pursuant to s 39(6) of the LEC Act, the Court can determine the appeal without the approval of certain consent authorities, including the RFS. With consideration of the Bushfire Assessment Report and its respective amendments prepared by Bushfire Evacuation Solutions dated 11 April 2022, 13 October 2023, 7 September 2024 and 13 November 2024, the Individual and Joint Bushfire Expert Reports prepared by Kieran Taylor dated 1 November 2024 and paragraphs 26-32 of the jurisdictional statement, I accept the parties’ agreement that the provisions of Planning for Bush Fire Protection 2019 and s 100B of the Fires Act have been adequately considered and satisfied. The power under s 39(6) of the LEC Act is exercised to grant consent and appropriate conditions of consent at Annexure A have been included.

Shoalhaven Local Environmental Plan 2014 (SLEP)

16. The site is zoned part RU1 Primary Production and part R2 Low Density Residential. In the R2 zone, the proposed subdivision and associated works are permissible with consent. In the RU1 zone, the proposed bioretention basin is permissible pursuant to s 2.138 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). The proposed noise walls and landscaping relate to the works in the R2 zone. The amended DA relies on cl 5.3 development near zone boundaries of SLEP. I accept the parties’ agreement that the clause can be applied and is satisfied, as the works are within 20m of the R2 zone (cl 5.3 (2)) and the amended Statement of Environmental Effects prepared by Cowman Stoddart Pty Ltd dated September 2024 (amended SEE) adequately addresses cl 5.3(4). On this basis, I accept that all of the proposed works are permissible.

17. Pursuant to cl 2.3, I have had regard to the objectives of both zones.

18. I accept the parties’ agreement that the relevant provisions of the SLEP have been addressed, as set out below.

1. Clause 2.6 permits the proposed subdivision.

2. Clause 4.1 permits a range of minimum lot sizes ranging from 350m² to 1 hectare. On the basis of the subdivision and civil engineering plans, I accept that all proposed lots are above their respective minimum lot sizes.

3. Clause 4.1E minimum lot size for certain split zone lots applies to the proposed development, in particular lots 522 and 410 as new resulting lots. I accept the agreement of the parties that cl 4.1E(3) and (4) are satisfied on the basis of paragraph 51 of the jurisdictional statement, the Subdivision Plan prepared by Allen Price and Scarratts Pty Ltd dated 14 November 2024 (subdivision plan) and the amended SEE.

4. Clause 5.3 is engaged and I accept the parties’ agreement that it has been satisfied, see [16].

5. Clause 5.16 applies to the proposed subdivision of land in RU1 primary production and requires that the matters identified in cl 5.16(4) must be taken into account when a development proposes subdivision of land proposed to be used for the purpose of a dwelling (cl 5.16(3)). The parties agree and I accept on the basis of the SEE and jurisdictional statement at paragraph 54 that the provisions have been considered.

6. Clause 5.21 applies as the site is located within a flood planning area. I accept the parties’ agreement that the flooding provisions have been satisfied on the basis of paragraph 55 of the jurisdictional statement, Joint Flooding and Stormwater Expert Report of the engineers (Flooding JER), amended Flooding and Stormwater Assessment and Management Report prepared by Southwast Engineering and Environment dated 5 September 2024, amended Stormwater Plans prepared by Southeast Engineering and Environmental dated 25 October 2024 and amended Stormwater Masterplan prepared by Southeast Engineering dated 15 November 2024.

7. Clause 7.1 acid sulfate soils applies as the site is mapped as containing class 5 soils. I accept that the proposed works do not lower the watertable below 1m AHD on the basis of the SEE.

8. I accept the parties’ agreement that cl 7.2 earthworks has been adequately considered as set out in paragraph 57 of the jurisdictional statement and demonstrated by the civil engineering drawings, amended Waste Minimisation and Management Plan prepared by Cowman Stoddart dated 2023 and conditions of consent at Annexure A.

9. Clause 7.6 Riparian land and watercourse applies to the site. The parties advise that the mapping incorrectly indicates a category 3 watercourse occurring across the south eastern corner of Lot 763, however the agreed position of the flooding experts is that the watercourse is located further south within Lot 764. The proposed works are located more than 50m away from the watercourse. The parties agree and I accept on the basis of the suite of flooding reports, flooding joint expert report, amended SEE and paragraph 58 of the jurisdictional statement that the provisions of cl 7.6 have been satisfied.

10. Clause 7.11 essential services applies to the amended DA. I accept the parties’ agreement that adequate arrangements have or will be made on the basis of the Sewer and Water Strategy report prepared by Allen Price & Scarratts dated 19 June 2017, Electricity Supply Strategic Review prepared by AKH Design Services dated 20 June 2017, vehicular access shown on the civil engineering plans (including owners consent from TfNSW) and paragraph 59 of the jurisdictional statement.

State Environmental Planning Policy(Biodiversityand Conservation) 2021

19. For the abundance of caution, the parties advise that chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) has been considered and the proposed tree removal is appropriate on the basis of the amended Arboricultural Impact Assessment prepared by Tree Management Strategies dated 18 September 2023 and the amended Landscape Plan prepared by Taylor Brammer Landscape Architects dated 13 November 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The proposed development is accompanied by a Stage 1 Preliminary Site Investigation prepared by ENRS day May 2022 which states that the site is suitable for the proposed development. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Section 2.48(4) of SEPP TI applies to the amended DA due to the proximity to overhead lines. The amended DA was referred to Endeavour Energy who raised no issues.

22. The subject site shares a boundary with a classified road (Princes Highway) and it is arguable if that constitutes a frontage to a classified road. For the abundance of caution, the parties submit that they have considered s 2.119 of SEPP TI. The parties submit that there is no direct vehicular access to the Princes Highway and the efficiency, safety and ongoing operation of the classified road will not be adversely affected, also considered by the suite of traffic reports accompanying the amended DA. The amended DA is accompanied by an Updated Acoustic Assessment prepared by Harwood Acoustics dated 6 September 2024 (Acoustic Report) which provides measures to minimise impacts from the classified road on future residents, including acoustic walls, future residential glazing requirements and landscaping. In accordance with s 2.119(2), the parties agree and I accept that the amended DA satisfies the provisions.

23. Section 2.120 arguably applies, as the site could be considered as adjacent to a road corridor exceeding an annual average daily traffic volume of 20,000 vehicles. I accept that the parties have considered the relevant guideline (NSW Department of Planning, Industry and Environment - Development Near Rail Corridors and Busy Roads Guidelines 2008) as demonstrated in the amended SEE and Acoustic Report. I accept the parties’ agreement that the provisions have been satisfied, noting that the current application is for subdivision, as demonstrated by the SEE, Acoustic Report and provision of acoustic walls along the Princes Highway boundary.

Conclusion

24. 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.

25. 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.

26. 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.

Orders:

27. The Court orders:

1. The appeal is upheld.

2. Development Application SF10965, as amended, for the staged residential subdivision to create 118 Torrens title allotments at Lot 762 and Lot 763 of DP 1224932 Hitchcocks Lane, Lot 15 and 16 of DP1188080 Princes Highway and Lot 6 of DP1070867 Princes Highway, Berry is granted consent, subject to the conditions of consent annexed at Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Amendments

24 March 2025 - Pursuant to rule 36.17 of the UCPR (the slip rule), an amended annexure a has been updated.

Decision last updated: 24 March 2025