Powerex Group Pty Ltd v Wingecarribee Shire Council

[2023] NSWLEC 1074

Land and Environment Court

New South Wales

Medium Neutral Citation:

Powerex Group Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1074

Hearing dates:

Conciliation conference on 7 February 2023

Date of orders:

21 February 2023

Decision date:

21 February 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) Leave is granted to amend the development application consistent with the plans and documents set out in Condition 2 of Annexure A.

(2) The appeal is upheld.

(3) Development Application No. DA22/1318, lodged with the Respondent via the NSW Planning Portal on 22 February 2022, being for the demolition of existing buildings and works, subdivision of land and carrying out of works to create 22 residential lots, and carrying out of works for the purposes of a road, and tree removal, at Lot 24 DP535979 and Lot 1 DP618016, known as 54-56 and 58 Robertson Road, Moss Vale NSW, is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation)2021, Ch 6, Pt 6.5

State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 11

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

Wingecarribee Shire Local Environmental Plan 2010, cll 4.1, 5.21

Category:

Principal judgment

Parties:

Powerex Group Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
B Dyer (Solicitor) (Respondent)

Solicitors:
Foundation Law Group Pty Ltd (Applicant)
Maddocks (Respondent)

File Number(s):

2022/126746

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal by Wingecarribee Shire Council of development application DA-2022/1318 which seeks consent for the Torrens title subdivision of the site to create 22 residential lots and associated road and drainage works at Lot 24 DP 535979 and Lot 1 DP 618016, known as 54-56 and 58 Robertson Road, Moss Vale.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. 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 7 February 2023. I presided over the conciliation conference.

4. 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.

5. 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 one 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 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each have been satisfied. From these, I note the following:

1. The parties submit and I accept that, based on the preliminary site investigation undertaken in July 2021, the site is not affected by contamination and does not require remediation prior to the development being carried out. Consequently, the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 4, s 4.6(1) have been satisfied.

2. Pursuant to State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021), a Site Suitability Assessment was prepared by Lodge Environmental that includes the site and surrounding land and states that the study area is not considered to be Core Koala Habitat. Subsequently, the parties submit, and I accept that cl 11 of the Koala SEPP is satisfied.

3. Chapter 6, Pt 6.5 Sydney Drinking Water Catchment of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) requires the applicant to demonstrate that water quality exiting a site post-development achieves a neutral or beneficial effect in comparison to pre-development water quality runoff. Based on the MUSIC modelling assessment and amended stormwater design, the parties submit, and I accept that the proposal achieves the required neutral or beneficial effect for the purposes of Pt 6.5. Further, Water NSW provided concurrence conditions dated 6 February 2023. From this the parties submit, and I accept that the requirements of Pt 6.5 of the Biodiversity SEPP are met with the proposed development.

4. Pursuant to Wingecarribee Shire Local Environmental Plan 2010 (WLEP), the site is zoned R2 Low Density Residential and C2 Environmental Conservation. Development is primarily proposed to be carried out on the part of the site that is zoned R2 but regardless, subdivision and ancillary subdivision works are permissible with consent in both of these zones.

5. Pursuant to the requirements of WLEP cl 4.1, the parties submit, and I accept that all proposed lots are equal to, or greater than the minimum lot size of 700m² and that the requirements of this clause are met.

6. The site is mapped as flood prone land. Having regard to the Operational Environmental Management Plan for Stormwater Management, Stormwater and OSD report, material prepared by Anthony Barthelmess of Rienco and the updated stormwater design, the parties submit, and I accept that the requirements of WLEP cl 5.21 are satisfied with the proposed development.

7. Owner’s consent was provided by PAGR Investments Pty Ltd with the application on 18 February 2022. In relation to the stormwater infrastructure being carried out on the adjoining public road reserve, the respondent Council provided owner’s consent on 25 November 2022.

8. The Council received 8 public submissions during the notification period for the development application. The parties submit and I accept that all issues raised by way of objection have been considered, and adequately addressed in the amended development application.

6. For these reasons, 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.

7. As the parties’ decision is one 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.

8. The Court orders:

1. Leave is granted to amend the development application consistent with the plans and documents set out in Condition 2 of Annexure A.

2. The appeal is upheld.

3. Development Application No. DA22/1318, lodged with the Respondent via the NSW Planning Portal on 22 February 2022, being for the demolition of existing buildings and works, subdivision of land and carrying out of works to create 22 residential lots, and carrying out of works for the purposes of a road, and tree removal, at Lot 24 DP535979 and Lot 1 DP618016, known as 54-56 and 58 Robertson Road, Moss Vale NSW, is approved subject to the conditions in Annexure A.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (838371, pdf)

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Decision last updated: 21 February 2023