Paloma Blanca Pastoral Pty Limited v Wingecarribee Shire Council

[2019] NSWLEC 1516

Land and Environment Court

New South Wales

Medium Neutral Citation:	Paloma Blanca Pastoral Pty Limited v Wingecarribee Shire Council [2019] NSWLEC 1516
Hearing dates:	Conciliation conference on 28 June 2019; 18 July 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”. (2)   The applicant is to pay, within 7 days of this agreement, the respondent’s costs of $5,000.00 for assessing the amended proposal. (3)   The Appeal is upheld. (4)   Development Application 17/1549 for a two-lot subdivision of Lot 231 DP 1226490 situated in Colo Road, Colo Vale NSW 2575 and associated subdivision works is approved subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – subdivision of land – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Wingecarribee Local Environmental Plan 2010
Category:	Principal judgment
Parties:	Paloma Blanca Pastoral Pty Limited (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) A Kliese (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2018/334118
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by the applicant against Wingecarribee Shire Council’s refusal of a development application for a two-lot subdivision of Lot 231 DP 1226490 situated in Colo Road, Colo Vale NSW 2575. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 28 June 2019 and 18 July 2019. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The agreement is supported by Annexure B to the agreement, entitled “The Check on Jurisdiction”.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The proposed development is for the subdivision of land, which is permissible with consent pursuant to cl 2.6 of the Wingecarribee Local Environmental Plan 2010 (“WLEP 2010”).

• The proposed development does not contravene the minimum lot size requirement in cl 4.1 of the WLEP 2010.

• In accordance with cl 7.10 of the WLEP 2010 and on the basis of the Statement of Environmental Effects filed 31 October 2018, I am satisfied that the proposed lots are serviced by sewer, water, power and natural gas, and that therefore public utility infrastructure that is essential for the proposed development is available.

• Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires consideration as to whether the land is contaminated and requires remediation. The site has historically been used for residential purposes and the proposal seeks consent for continued residential land use, and the land is therefore not likely to be contaminated and is considered suitable for subdivision.

• In accordance with cl 10 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 and on the basis of the Water Management Study by D & M Consulting, I am satisfied that the proposed development has a neutral or beneficial effect on water quality.

5. The proposal is for the subdivision of land that is bushfire prone. As such, s 4.14(1) of the EPA Act precludes consent from being granted unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

6. The proposed development conforms to the specifications and requirements of the document entitled Planning for Bush Fire Protection. This is confirmed by the Bushfire Hazard Assessment prepared by Joy Hafey and dated July 2017 and the ‘Bushfire Compliance’ letter provide by Bushfire & Evacuation Solutions dated 15 August 2019. Additionally, the parties have indicated in Annexure B to their agreement that the NSW Rural Fire Service has issued general terms of approval and a bushfire safety authority with conditions, dated 3 October 2019.

7. 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)).

8. In making the orders to give effect to the agreement between the parties, 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.

9. The Court orders that:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

2. The applicant is to pay, within 7 days of this agreement, the respondent’s costs of $5,000.00 for assessing the amended proposal.

3. The Appeal is upheld.

4. Development Application 17/1549 for a two-lot subdivision of Lot 231 DP 1226490 situated in Colo Road, Colo Vale NSW 2575 and associated subdivision works is approved subject to the conditions set out in Annexure “A”.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (545 KB)

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Decision last updated: 29 October 2019