NHP Campbelltown Pty Ltd v Campbelltown City Council

[2023] NSWLEC 1649

Land and Environment Court

New South Wales

Medium Neutral Citation:

NHP Campbelltown Pty Ltd v Campbelltown City Council [2023] NSWLEC 1649

Hearing dates:

Conciliation conference held on 25 October 2023

Date of orders:

02 November 2023

Decision date:

02 November 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application 1421/2022/DA-SW, as amended, which seeks staged subdivision of land into 129 Torrens title residential lots and 5 residue lots, land clearing, construction of roads, stormwater drainage basin, acoustic wall and associated landscaping on Lot 4 Deposited Plan (DP) 1213869, also known as 184 Narellan Road, Campbelltown, Lot 1429 DP 1047382 and Lot 1428 DP 1047382, is determined by the grant of consent, subject to the conditions of consent contained at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – biodiversity consideration - conciliation conference– agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.2, 7.2, 7.7

Biodiversity Conservation Regulation 2017, cl 7.2

Campbelltown Local Environmental Plan 2015, cll 2.3, 7.20

Dams Safety Act 2015, ss 4, 5

Dams Safety Regulation 2019

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.46, 4.47, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

National Parks and Wildlife Act 1974, s 90

Rural Fires Act 1997, s 100B

State Environment Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4, 9, s 4.8

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Water Management Act 2000, s 91

Texts Cited:

Campbelltown Comprehensive Koala Plan of Management 2018

Campbelltown Community Participation Plan 2019

Campbelltown (Sustainable City) Development Control Plan 2015

Category:

Principal judgment

Parties:

NHP Campbelltown Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Mills Oakley
Marsdens Law Group

File Number(s):

22/227044

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application 1421/2022/DA-SW (the DA) by Campbelltown City Council (hereafter the Council) which, as amended, seeks the staged subdivision of land into 129 Torrens title residential lots and 5 residue lots, land clearing, construction of roads, stormwater drainage with basin, acoustic wall and associated landscaping on Lot 4 Deposited Plan (DP) 1213869, also known as 184 Narellan Road, Campbelltown, Lot 1429 DP 1047382 and Lot 1428 DP 1047382 (together known as the site).

Background

2. The DA was lodged with the Council on 26 April 2022. The original DA was notified to residents, with no submissions received. The DA was referred to Rural Fire Services (RFS), Endeavour Energy, Dams Safety NSW, Heritage NSW and Department of Planning and Environment - Water (DPE-Water), pursuant to ss 4.46 and 4.47(2) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held in person.

5. Prior to the conciliation, in response to the Applicants motions seeking to amend the DA, the Court granted leave to amend the DA on 28 July 2023 and 25 October 2023.

6. Further to this, the Council agreed for the Applicant to amend the Voluntary Planning Agreement Letter of Offer that supports the DA, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

7. Based on the amendments to the DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties advise the Court that the contentions of Council have been considered and are resolved, and as described in their jurisdictional assessment, all relevant jurisdictional matters are addressed. The agreed position of the parties is for the Court to grant consent to the amended Development Application 1421/2022/DA-SW, with conditions as described in Annexure A.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, to grant consent to Development Application 1421/2022/DA-SW, subject to conditions in Annexure A.

Jurisdictional prerequisites

9. The site is mapped as bushfire prone, based on Council mapping. The DA is subject to consideration of s 4.14 of the EPA Act. In response to the referral of the DA, the RFS issued a Bushfire Safety Authority and General Terms of Approval (GTA’s) relating to the amended DA, pursuant to s 100B of the Rural Fires Act 1997. The amended DA relies on the Bushfire (Protection) Assessment Reports, prepared by Travers Bushfire & Ecology, dated 8 July 2021, 2 August 2021, 7 September 2021 and 22 March 2023. The requirements of s 4.14 of the EPA Act are sufficiently addressed.

10. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been considered and are addressed:

1. Water Management Act 2000 (WM Act):

1. The site is dissected by a watercourse and there are works proposed within 40m of the mapped watercourse. The DA is supported by a Watercourse Constraints Assessment Report, prepared by Travers Bushfire & Ecology, dated 8 September 2021.

2. Section 91 of the WM Act requires a controlled activity approval for the proposed development. NSW Department of Natural Resources Access Regulator (NRAR) and DPE-Water, as concurrence authorities, have issued GTA’s for the proposed development, that are included in the conditions of consent in Annexure A.

2. Dams Safety Act 2015 (Dams Act) and Dams Safety Regulation 2019 (Dams Regulation):

1. The proposed development relies on a permanent dam structure to manage stormwater, that is of a dimension engaging s 4 of the Dams Act. The DA relies on a Preliminary Dam Assessment Report, prepared by Martens, dated March 2023 that assesses no likely downstream issues relating to the proposed dam structure. Dams Safety NSW have assessed the DA and are satisfied that the proposed dam is not declared, pursuant to s 5 of the Dams Act, and as described in the Dams Regulation.

3. National Parks and Wildlife Act 1974 (NPW act)

1. The site has identified Aboriginal artefact scatter, although as assessed in the Aboriginal Cultural Heritage Assessment (prepared by Ecological, dated 5 April 2022), that supports the DA, is assessed as of low significance of harm. The DA is also supported by an Archaeological Technical Report, prepared by Ecological, dated 5 April 2022.

2. Pursuant to s 4.46(2) of the EPA Act, Heritage NSW have issued GTA’s relating to the proposed development. Pursuant to s 90 of the NPW Act, an Aboriginal heritage impact permit is required, which is addressed in the conditions of consent in Annexure A.

4. Campbelltown Local Environmental Plan 2015 (CLEP):

1. The site is on land zoned as R2 Low Density Residential, R3 Medium Density Residential and RE1 Public Recreation, pursuant to cl 2.3 of the CLEP. The proposed subdivision of lots, associated civil works and landscaping are permissible with consent in the respective zones.

2. The DA is supported by a Statement of Environmental Effects (SEE) prepared by GLN Planning Consulting Strategy, dated 11 April 2022 and an Addendum to the SEE, prepared by GLN Planning Consulting Strategy, dated 19 July 2023.

3. The amended DA is also supported by relevant documents to provisions of the CLEP, that together with agreed conditions of consent sufficiently address the relevant objectives, aims, standards and requirements of the CLEP.

5. Biodiversity Conservation Act 2016 (BM Act) and Biodiversity Conservation Regulation 2017 (BC Regulation)

1. A portion of the site is mapped as native vegetation and being Terrestrial Biodiversity, pursuant to cl 7.20 of the CLEP. The proposed clearing of 0.39ha of native vegetation engages cl 7.2 of the BC Regulation and s 7.2 of the BC Act.

2. The DA is supported by a Biodiversity Development Assessment Report (BDAR), prepared by Eco Planning, dated 23 October 2023, and in consideration of ss 6.2 and 7.7 of the BC Act. The DA (and BDAR) is also supported by an amended Vegetation Management Plan, prepared by Travers Bushfire & Ecology, dated 12 October 2023. The proposed strategies of avoidance, minimisation and mitigation with offsetting is consistent with the BC Act.

6. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The contamination status of the site must be considered, prior to grant of consent. The Council has assessed that the site is suitable for (future) residential use, based on its historic use and documents that support the DA, including the Stage 1 and 2 Contamination Investigation Report, prepared by Geotechnique Pty Ltd, dated 26 February 2021, which together with the agreed conditions of consent, address the requirements of s 4.6 of the SEPP Resilience.

7. State Environment Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. Based on the proposed clearing and location of the site, the DA is subject to consideration of provisions of the SEPP Biodiversity, specifically Chs 3 and 4. Section 4.8 requires that the proposed development must be considered consistent with the Campbelltown Comprehensive Koala Plan of Management (CCKPOM).

2. The site is not mapped as having ‘potential or core’ Koala habitat. Pursuant to Section 6.3.1 of the CCKPOM, the DA is supported by a Koala Assessment Report, prepared by Ecological, dated 16 March 2022. The DA is also supported by an updated Voluntary Planning Agreement Letter of Offer, dated 25 October 2023 to address the loss of Koala habitat and facilitate habitat rehabilitation/regeneration programmes.

3. The site is located within the catchment of the Hawkesbury River. Based on the date of DA submission to the Council, Ch 9 of the SEPP Biodiversity is a relevant consideration. The proposed stormwater drainage management is not considered to cause adverse impact in the catchment, relevantly addressing the requirements of Ch 9 of the SEPP Biodiversity.

8. State Environment Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport):

1. The site contains an electricity easement benefitting Endeavour Energy, thereby engaging relevant provisions of the SEPP Transport. Pursuant to s 2.48, Endeavour Energy have issued GTA’s for the proposed development, that are included in the conditions of consent in Annexure A.

9. Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP):

1. The original DA was publicly notified in accordance with the CDCP and the Council’s Community Engagement Strategy and Campbelltown Community Participation Plan, with no submissions received.

2. The relevant requirements of the CDCP are generally complied with.

11. Pursuant to s 23 of the EPA Reg, the Applicant has satisfied the Court with the provision of consent from all landowners relevant to the (amended) DA. It is noted that Lot 1428 DP 1047382 is Council owned land. All proposed works are contained within lots identified as the site.

Grant of consent

12. In consideration of the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

13. The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in contention have been addressed by the amendments made and supporting documents to the DA.

14. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application 1421/2022/DA-SW should be granted consent, subject to conditions described in Annexure A.

15. 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.

16. The Court notes that:

1. Campbelltown City Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 1421/2022/DA-SW with an updated Voluntary Planning Agreement Letter of Offer, dated 25 October 2023

2. The above amendment to Development Application 1421/2022/DA-SW was filed with the Court on 25 October 2023.

17. The Court orders that:

1. The appeal is upheld.

2. Development Application 1421/2022/DA-SW, as amended, which seeks staged subdivision of land into 129 Torrens title residential lots and 5 residue lots, land clearing, construction of roads, stormwater drainage basin, acoustic wall and associated landscaping on Lot 4 Deposited Plan (DP) 1213869, also known as 184 Narellan Road, Campbelltown, Lot 1429 DP 1047382 and Lot 1428 DP 1047382, is determined by the grant of consent subject to the conditions of consent contained at Annexure A.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 02 November 2023