Pastoral Investment Land and Loan Pty Ltd v Central Coast Council

[2022] NSWLEC 1152

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pastoral Investment Land & Loan Pty Ltd v Central Coast Council [2022] NSWLEC 1152

Hearing dates:

Conciliation conference on 22 March 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)  The appeal is upheld.

(2) Concept development application no 1487/2017 for concept development - boundary realignment (subdivision), clearing of native vegetation (stage 1) and a concept proposed for a landscape supply business and self-storage units (stage 2) at 130-134 Sparks Road, Warnervale NSW, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

(3) The exhibits may be returned except for A, B, C, D, E, 1 and 3. 

Catchwords:

DEVELOPMENT APPLICATION – concept development (staged) – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Sch 9

Biodiversity Conservation (Savings and Transitional) Regulation 2017, cll 27, 28

Environmental Planning and Assessment Act 1979. ss 4.22, 8.7

Land and Environment Court Act 1979, s 34

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.118

Threatened Species Conservation Act 1995 (repealed)

Wyong Local Environmental Plan 2013, cll 2.6, 4.1, 4.2C, 6.3, 7.9

Category:

Principal judgment

Parties:

Pastoral Investment Land & Loan Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
J Young with M Fozzard (Applicant)
M Staunton with L Nurpuri (Respondent)

Solicitors:
Allsop Glover Lawyers (Applicant)
Central Coast Council (Respondent)

File Number(s):

2018/339406

Judgment

1. These proceedings concern a development application DA/1487/2017 (DA) for a concept development for a boundary realignment (subdivision), clearing of native vegetation (stage 1) and a concept proposed for a landscape supply business and self-storage units (stage 2) at 130-134 Sparks Road, Warnervale NSW (site).

2. At the time of assessment, cl 6.3(2) of the Wyong Local Environmental Plan 2013 (LEP) prohibited the granting of consent for development on land unless a development control plan addressing the relevant matters was prepared. By request dated 13 April 2018 (contained within Ex A, email from Chris Smith to Salli Pendergast), the DA was amended to include a concept proposal under Div 4.4 of the EPA Act in the terms outlined above.

3. The amended DA was determined on 7 August 2018 by the granting of a partial consent (under s 4.16(4) of the Environmental Planning and Assessment Act 1979 (EPA Act)) for subdivision (boundary adjustment) only. The partial consent excluded proposed native vegetation clearing, land use and all other works and is subject to conditions.

4. These proceedings were commenced by the applicant on 5 November 2018 pursuant to s 8.7 of the EPA Act. At the time, the applicant sought an order that “Development Application DA/1487 be modified by the granting of consent to the clearing of land as sought in the application, and that condition 1.2 be deleted from the consent”.

5. On 18 May 2021, the applicant was granted leave to amend its Class 1 Application to seek an order that “Development Application DA/1487 be granted for the Subdivision and Clearing of Vegetation ancillary to Subdivision, subject to conditions”.

6. The description of the development remains a staged development (s 4.22(4) of the EPA Act). Stage 1 consists of a boundary adjustment and clearing of proposed Lot 2. Stage 2 consists of a proposed mixed use development comprising landscaping material supplies and self-storage units, associated visitor parking perimeter landscape treatment and stormwater quality devices. Conditions 1.2 and 1.3 of the agreed conditions make this clear.

7. At the request of the parties, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between them on 22 March 2022, at which I presided.

8. 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 and granting development consent to the development application subject to conditions.

9. 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. The parties’ decision involves the Court exercising the function under s 4.16 in respect of an application made under s 4.22 of the EPA Act. The latter provision states:

4.22   Concept development applications (cf previous s 83B)

(1)  For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.

(2)  In the case of a staged development, the application may set out detailed proposals for the first stage of development.

(3)  A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.

(4)  If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless—

(a)  consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b)  the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.

(5)  The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

Note—

The proposals for detailed development of the site will require further consideration under section 4.15 when a subsequent development application is lodged (subject to subsection (2)).

10. Before this function can be exercised there are jurisdictional prerequisites that must be satisfied. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a written submission filed with their executed s34 agreement dated 21 March 2022. Based on that evidence before me and after a consideration of the parties’ submissions, 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 for the following reasons:

Boundary adjustment

11. Under the provisions of the LEP, the site is zoned E2, but as of 1 December 2021 the land was reclassified to C2 Environmental Conservation, pursuant to the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021, and IN1 General Industrial.

12. The objectives of the C2 zone are:

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To protect endangered ecological communities, coastal wetlands and littoral rainforests.

• To enable development of public works and environmental facilities if such development would not have a detrimental impact on ecological, scientific, cultural or aesthetic values.

13. The objectives of the IN1 zone are:

• To provide a wide range of industrial and warehouse land uses.

• To encourage employment opportunities.

• To minimise any adverse effect of industry on other land uses.

• To support and protect industrial land for industrial uses.

• To enable other land uses that provide facilities or services to meet the day-to-day needs of workers in the area.

14. The parties submit, and I accept that the proposed development is consistent with the zone objectives in both zones, and therefore met; and that the subdivision of land would not result in a contravention of the EPA Act, an environmental planning instrument or the regulations. They also submit that the Council, and hence the Court, has power to grant development consent for the subdivision of land under cl 2.6 of the LEP. The proposed development, in part, constitutes a boundary adjustment pursuant to cl 4.2C and therefore cl 4.1 of the LEP is not engaged because the proposed subdivision does not propose a division of the portion of the site zoned C2. I accept the parties’ interpretation of the LEP provisions as outlined based on the facts and the permissibility of the development in this case.

Clearing of native vegetation

15. The other aspect of the DA is the clearing of land. The parties submit and I accept on the evidence before me that the site contains an endangered ecological community - River-Flat Eucalypt Forest on Coastal Floodplains, an endangered population - Eucalyptus parramattensis subsp. parramattensis (Parramatta Red Gum), and furthermore, that the site is a habitat for threatened flora species - Thelymitra adorata (Wyong Sun Orchid).

16. Relevantly, when the applicant lodged its DA with the Council on 24 November 2017 the Threatened Species Conservation Act 1995 and the provisions of the EPA Act dealing with the assessment of threatened species, populations and ecological communities, and their habitats, had been repealed by the Biodiversity Conservation Act 2016, which came into effect on 25 August 2017.

17. Under Sch 9 of the Biodiversity Conservation Act and cll 27-28 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017, the former planning provisions of the EPA Act continued to apply to a pending or interim planning application for development consent under Pt 4 of the EPA Act made within three months of 25 August 2017. The result being that the former planning provisions continued to apply.

18. The applicant has carried out assessments of significance and the 5 part test of significance by Mr John Whyte (Appendix B of Joint Expert Report dated 10 March 2022) for the following flora and fauna:

1. River-Flat Eucalypt Forest on Coastal Floodplains

2. Eucalyptus parramattensis subsp. parramattensis (Parramatta Red Gum)

3. Thelymitra adorata (Wyong Sun Orchid)

19. The applicant has also carried out an assessment of significance and 5 part test of significance for other flora and fauna found on the site (Ex D – GHD Biodiversity Report dated 28 January 2021).

20. That said, the parties submit, and I accept on the evidence before the Court that the development and conditions proposed will protect any threatened flora and fauna species and that there is no basis to refuse consent on ecological grounds. I am also satisfied that suitable vehicle access can be provided, and that such access will avoid any threatened species and communities, therefore adequately mitigating against impacts (Ex 3) (cl 7.9 of the LEP). Furthermore, that all other essential services can be made available when required as all that is permitted under the consent is subdivision and clearing for which water, electricity, sewage and stormwater drainage is not required. I accept the parties’ submissions because they are supported by the evidence filed with the Court.

21. The State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the site. Part of the subject land is to be acquired by Transport for NSW (TfNSW), as such, the concurrence of TfNSW is not required under cl 2.117(1). However, as Sparks Road is a State road (and therefore classified), cl 2.118(2) mandates that the Court must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

22. I accept having taken a view of the site that no other road can provide access to the land (Ex 3). As such, I am satisfied on the evidence that proposed conditions 1, 2 and 4(c) of Schedule A adequately satisfies cl 2.118 with respect to the safety, efficiency and ongoing operation of Sparks Road. Noting, as the proposed development is for subdivision and clearing, being stage 1, cl 2.118(2)(c) is not engaged.

23. Accordingly, 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.

24. The Court orders that:

1. The appeal is upheld.

2. Concept development application no 1487/2017 for concept development - boundary realignment (subdivision), clearing of native vegetation (stage 1) and a concept proposed for a landscape supply business and self-storage units (stage 2) at 130-134 Sparks Road, Warnervale NSW, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

3. The exhibits may be returned except for A, B, C, D, E, 1 and 3. 

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (248574, pdf)

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Amendments

23 March 2022 - Correction to cover sheet

Decision last updated: 23 March 2022