Parsons v Shellharbour City Council

[2020] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parsons v Shellharbour City Council [2020] NSWLEC 1539

Hearing dates:

Conciliation Conference on 26 October 2020

Date of orders:

9 November 2020

Decision date:

09 November 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

See orders at [23] below

Catchwords:

DEVELOPMENT APPLICATION – cemetery development with associated buildings – flood and noise management – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016

Disability (Access to Premises – Buildings) Standards 2010 (Cth)

Disability Discrimination Act 1992 (Cth)

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Roads Act 1993

Shellharbour Local Environmental Plan 2013

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 64 – Advertising and Signage

Texts Cited:

Shellharbour Development Control Plan 2013

Category:

Principal judgment

Parties:

Alan Parsons (Applicant)
Shellharbour City Council (Respondent)

Representation:

Counsel:
M Mantei (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Planning Law Solutions (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/83560

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 0682/2019 by Shellharbour City Council (hereafter the Council) which as amended, seeks a (cemetery) development with construction of associated buildings including a memorial home, administration, mortuary, landscaping, parking, essential services, road and drainage works on Lot 300 DP 1223037, also known as corner Croome Road and Tongarra Road, Croom (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to the parties’ request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held before me on 26 October 2020 by Microsoft (MS) Teams in Court. There were no (resident) objectors at the conciliation, however the Court notes that a number of resident submissions in objection were provided as a result of notification of the original DA.

4. Based on the amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved, in addition to the issues raised in submissions by objectors. The decision of the parties is to uphold the appeal and grant consent to DA 0682/2019 with conditions.

5. 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 be satisfied of the requirements in ss 4.14 and 4.15(1) to grant consent to DA 0682/2019, with conditions described in Annexure A.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court’s consideration as consistency with the: Disability Discrimination Act 1992; (DD Act); Biodiversity Conservation Act 2016 (BC Act); Roads Act 1993; Environmental Planning and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55); State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64); Shellharbour Local Environmental Plan 2013 (SLEP); the Disability (Access to Premises – Buildings) Standards 2010 (Disability Standards); and the Shellharbour Development Control Plan 2013 (SDCP).

7. The parties agree that the requirements of the DD Act have been satisfied by the provision of an access report by ABE Consulting, dated 5 August 2020 and which supports the DA, that confirms the proposed design satisfies the requirements of the Disability Standards. The conditions of consent reflect the requirements to satisfy the DD Act. The relevant contention is thereby resolved.

8. The parties recognise that the site is partially mapped as bushfire prone land. A Bushfire Hazard Assessment, prepared by Harris Environmental Consulting, supports the DA. The NSW Rural Fire Service have provided conditions of approval, which are included in the conditions of consent. Therefore, the parties agree that the requirements of s 4.14 of the EPA Act are satisfied.

9. The parties agree that the DA has assessed any potential impact of the proposed development on endangered species. The site assessment and test of significance report dated 24 July 2020, demonstrates that there is no known potential for impact to endangered species. The parties agree that the requirements of the BC Act are satisfied, and the relevant contention is resolved by the documents supporting the DA and conditions of consent.

10. As the DA proposes works to Tongarra Road, which is a classified road and a car park for more than 50 spaces, concurrence was sought and provided from Transport for NSW (TfNSW). Their requirements are included in the conditions of consent, with the proposed upgrades to roads associated with the site shown in plans that support the DA. Works that require the dedication of two small sections of the site to Council, are identified in the conditions of consent and attached plans. The parties agree that the requirements of the Roads Act 1993 and SEPP Infrastructure are satisfied, and the relevant contentions resolved.

11. The applicant is a Director of the company that owns the land, and the parties agree that there are no issues relating to compliance with Schedule 1 of the EPA Reg in the making of the development application.

12. The parties agree that the proposed development complies with the provisions of SEPP 55, as contamination is not likely on the site, as assessed by the Council. The parties agree that the site is suitable for the proposed development and the conditions of consent address any unforeseen issues, thereby satisfying the requirements of SEPP 55.

13. The parties agree that the proposed signage is consistent with the aims and objectives of SEPP 64, and that the signage proposed satisfies the criteria specified in Schedule 1. The contention that relates to the requirements of cl 8 of SEPP 64 is resolved to the satisfaction of the parties.

14. The proposed development on the site is located within the SP1 Special Activities Zone, as identified in the SLEP. The proposed development is permissible and satisfies the objectives of this zone. The western portion of the site is zoned RE1 (Public Recreation), pursuant to the SLEP, although the parties accept that this area is not intended to be developed as part of the DA under appeal. The parties agree that the relevant provisions of the SLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The relevant contentions are resolved by the DA’s amended plans and supporting documents, and conditions of consent.

15. Specifically, the supporting documents and amended plans of the DA, together with the conditions of consent satisfy the requirements of cl 6.3 of the SLEP, as the land is partially mapped as flood prone, and which resolves the relevant contention.

16. The site is located within proximity of the Illawarra Regional (Shellharbour) Airport. The parties agree that the requirements of the Civil Aviation Safety Authority (CASA), and specifically cll 6.7 and 6.8 of the SLEP are addressed by the provisions of an Environmental Noise Impact Assessment prepared by Harwood Acoustic, which support the DA and as described in the conditions of consent in Annexure A.

17. As a result of the amended DA and conditions of consent, the parties agree that there are no unreasonable amenity impacts to adjoining properties or within the site as a result of the proposed development. The acoustic impact assessment that supports the amended DA resolves the issues as raised by objectors, with regards to any potential amenity issues to the mourners on the site. The parties agree the site is suitable for the proposed development. The contention as it relates to acoustic impact is resolved because noise from the nearby airport will be mitigated by the design of buildings and the height limit on structures is observed.

18. The parties agree that the DA was publicly notified in accordance with the SDCP. During the notification period for this DA under appeal, 10 submissions in objection were received by Council. The parties agree that the issues raised by objectors are resolved by the provision of additional information and amended plans that supports the DA, and conditions of consent.

19. The parties advise the Court that the amended plans that relate to the proposed development have been considered in the context of the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties and the Court.

20. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, and that they are satisfied resolves the contentions and resident issues, as raised.

21. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 0682/2019 should be granted, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act.

22. 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.

23. The Court orders that:

1. Leave is granted to rely on the following documents that are the subject of development application DA 0682/2019:

Name of Plan/Document	Prepared By	Drawing/Document No./Revision	Drawing/Document Date
Cover Sheet & Overall Site Plan	Place Logic	L000/Revision 3	25/09/2020
Staging Plan	Place Logic	L001/Revision 2	25/09/2020
Proposed Signage	Place Logic	L003/Revision 00	20/12/2019
Site Plan (North)	Place Logic	L100/Revision 5	25/09/2020
Site Plan (South)	Place Logic	L1001/Revision 6	25/09/2020
Landscape Plan (North)	Place Logic	L300/Revision 4	25/09/2020
Landscape Plan (South)	Place Logic	L301/Revision 4	25/09/2020
Building B:Chapel Floor Plan	Marksman Homes	Job No.2267, Revision T1	25/09/2019
Building B:Chapel Elevations	Marksman Homes	Job No.2267, Revision T1	25/09/2019
Building C:Memorial Homes-Floor Plan & Elevations	Marksman Homes	Job No.2267, Revision T1	05/12/2019
Building D:Memorial Homes Office-Floor Plan & Elevations	Marksman Homes	Job No.2267, Revision T1	-
Building E:Administration, Garage and Mortuary-Floor Plan	Marksman Homes	Job No.2267, Revision T1	05/12/2019
Building E:Administration, Garage and Mortuary-Elevations	Marksman Homes	Job No.2267, Revision T1	05/12/2019
Stormwater Plan-Sheet 1	Westlake Punnet	19395-C02, Revision F	18/09/2020
Stormwater Plan-Sheet 2	Westlake Punnet	19395-C03, Revision F	18/09/2020
Waste Management Plan	Alan Parsons	-	19/12/2019
Bushfire Hazard Assessment for Proposed Cemetery Development and Associated Buildings	Harris Environmental Consulting	Reference 3516	16 Dec 2019
Aircraft Noise Intrusion Assessment Proposed Cemetery Development at Croome Road/Tongarra Road (LOT 300, DP 1223037) Albion Park NSW 2527	Harwood Acoustics.	Rev FINAL	15 Jan 2020
Flood Impact Assessment Report At Cnr Croome & Tongarra Roads, Albion Park Lot 300, DP 1223037	Westlake Punnett and Associates Pty Ltd	Job ref: 19395.01	22 September 2020
Accessibility Design Review Report	ABE Consulting	Job No.20219, Version 20219_ADR-DA_v12	5 August 2020

2. The Court orders the Applicant pay the Respondent’s costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,500 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development application DA 0682/2019 for a cemetery and associated (ancillary) buildings and roadworks at Lot 300 DP 1223037, Croome and Tongarra Road, Croom is determined by the grant of consent, subject to the conditions at Annexure “A”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (1887292, pdf)

Plans (14182415, pdf)

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Decision last updated: 09 November 2020