Palm Development Company Pty Limited v Tweed Shire Council

[2023] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:

Palm Development Company Pty Limited v Tweed Shire Council [2023] NSWLEC 1491

Hearing dates:

Conciliation conference 25 August 2023

Date of orders:

30 August 2023

Decision date:

30 August 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development Application No. 22/0566 for subdivision of one lot into three lots; removal of trees from proposed Lots 1 and 3; translocation of six trees and compensatory tree planting and landscaping; demolition of existing carport; alteration of existing garage to align with façade of existing dwelling; demolition of existing pergola on at rear of dwelling; removal of swimming pool and filling of resultant void; creation of easements, rights of carriageways and restrictions to use in the Asset Protection Zone at 7-13 Broadway Burringbah.

Catchwords:

DEVELOPMENT APPLICATION – subdivision, building works and tree removal – amended plans and information – agreement reached between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.46, 8.14, 8.7, Pt 4

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

Local Land Services Act 2013, Pt 5A, s 60O

Rural Fires Act 1997, s 100B

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

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

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

Tweed Local Environmental Plan 2014, cll 2.6, 2.7, 4.1, 7.10

Texts Cited:

AS 3959-2018- Construction of Buildings in Bushfire Prone Areas

NSW Rural Fire Service Planning for Bushfire Protection 2019

Tweed Shire Council Community Engagement and Participation Plan 2019-2024

Category:

Principal judgment

Parties:

Palm Development Company Pty Limited (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:
A Sattler (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/381957

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal is bought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant, Palm Development Company Pty Limited. The Applicant appeals the actual refusal of their development application DA2022/0566 by the Respondent, Tweed Shire Council. The development application, as amended, seeks consent for:

• Creation of Lots 1, 2 and 3

• Removal of trees from proposed Lots 1 and 3, with translocation of 6 trees and compensatory tree planting and landscaping

• Existing carport to be demolished, with existing garage to be altered to align with façade of the existing dwelling

• Existing pergola to rear of dwelling on proposed Lot 1 and Lot 2 to be demolished

• Removal of swimming pool from proposed Lot 3 and filling of resultant void

• Creation of easements, rights of carriageway and restrictions on use in the Asset Protection Zone.

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 20 March 2023. That conciliation conference was terminated, and the matter listed for hearing.

3. Following the conciliation conference, the parties continued without prejudice discussions. These discussions and the preparation of joint expert reports resulted in the Application proposing amendments to the development application. Prior to the hearing, the parties reached an in principle agreement and sought orders for a further conciliation conference. That conciliation conference was listed on 25 August 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.

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. The owner of the land is the applicant for the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

2. The development application was advertised and notified to adjoining and nearby landowners for 14 days in accordance with the Tweed Shire Council Community Engagement and Participation Plan 2019-2024. No submissions were received.

3. Part of the site is on bushfire prone land. The development is integrated development pursuant to s 4.46(1) of the EPA Act and pursuant to s 100B(3) of the Rural Fires Act 1997 (Rural Fires Act), a bushfire safety authority must be obtained for the development. The development application was referred to NSW Rural Fire Service (NSW RFS) for consultation, however they declined to make comment on the development application as the matter was before the Court. Section 8.14(4)(a) of the EPA Act provides that the Court can determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body (in this case the NSW RFS). Further, the parties respective bushfire experts both agree that, subject to the imposition of the annexed conditions, the proposed development will comply with the requirements of the Rural Fires Act, NSW Rural Fire Service Planning for Bushfire Protection 2019 and AS 3959:2018- Construction of Buildings in Bushfire Prone Areas. The parties agree, and I accept, that s 4.14(a) of the EPA Act is satisfied.

4. Tweed Local Environmental Plan 2014 (LEP 2014) applies to the development. The site is zoned RU5 Village. In determining the development application, I have given consideration to the zone objectives which are:

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To maintain the rural landscape character of the land.

•  To provide for a range of compatible land uses, including extensive agriculture.

•  To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land.

5. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2014.

6. Subdivision is permitted with consent pursuant to cl 2.6 of LEP 2014.

7. The proposed lots comply with the minimum lot size standard at cl 4.1 of LEP 2014.

8. Each of the services listed at cl 7.10 of LEP 2014 that are essential for the development are available.

9. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The amended development application is accompanied by a Detailed Site Investigation and a Remedial Action Plan (RAP) with confirms that the site will be suitable for the proposed development following remediation. The conditions of consent include the requirement for the implementation of the RAP and the obtaining of a clearance certificate prior to the issue of an Occupation Certificate. I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

10. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to land in the RU5 Village Zone. A permit or approval to clear vegetation is not required under Ch 2 if it is clearing of a kind that is authorised under the Local Land Services Act 2013 (Local Land Services Act), s 60O of Part 5A. Clearing is authorised under section 60O(i) of the Local Land Services Act if the clearing is authorised by a development consent under Pt 4 of the EPA Act. I am satisfied that the removal and transplanting of trees would be authorised as being part of or ancillary to the carrying out of the subdivision development.

11. In accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 the development application was referred to Essential Energy on 12 January 2023. The annexed conditions incorporate their requirements.

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, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 notes that Tweed Shire Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 22/0566 to rely upon the following plans and documents:

Drawing	Date	Prepared By
Boundary Plan DWG NO. BP01 B	10.8. 2023	Daniel Raymond Architects
Easement Plan DWG NO. EP01B	10.8.2023	Daniel Raymond Architects
Building Footprint Plan DWG NO. BFP01B	10.8.2023	Daniel Raymond Architects
Detailed Site Plan DWG NO. DSP01B	10.8. 2023	Daniel Raymond Architects
Elevation Sheet DWG NO. ELE01	10.8. 2023	Daniel Raymond Architects
Landscape Plan DWG NO LP01 A	10.8. 2023	Daniel Raymond Architects
Civil Design Plan – Civil 1/E	10.8. 2023	Taylor Consulting

8. The Applicant filed the amended development application with the Court on 25 August 2023.

9. The Court orders that:

1. The appeal is upheld

2. Development Application No. 22/0566 for subdivision of one lot into three (3) lots; removal of trees from proposed Lots 1 and 3; translocation of 6 trees and compensatory tree planting and landscaping; demolition of existing carport; alteration of existing garage to align with façade of existing dwelling; demolition of existing pergola on at rear of dwelling; removal of swimming pool and filling of resultant void; creation of easements, rights of carriageways and restrictions to use in the Asset Protection Zone at 7-13 Broadway Burringbah.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 30 August 2023