Prestige Holdings Group Pty Ltd v Shoalhaven City Council

[2024] NSWLEC 1579

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prestige Holdings Group Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1579

Hearing dates:

Conciliation conference on 3 September 2024

Date of orders:

19 September 2024

Decision date:

19 September 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $55,000 in full and final settlement of this order and the Court’s earlier orders for costs made on 18 October 2023 and 31 January 2024.

(2) The appeal is upheld.

(3) Development Application No. DA22/1769 for the staged construction of a residential housing development, comprising a residential flat building with 11 apartments (stage 1) and 20 multi-dwelling townhouses (stage 2), associated accessways, parking facilities, walkways and landscaped areas, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential housing development in stages – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016 s 7.14

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979 s 34

Environmental Planning and Assessment Regulation 2021 s 28

Biodiversity Conservation Regulation 2017 s 6.7

State Environmental Planning Policy (Housing) 2021 Ch 4

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

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

Shoalhaven Local Environmental Plan 2014 (LEP 2014) cll 4.3, 7.3

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Prestige Holdings Group Pty Ltd (Applicant) Shoalhaven City Council (Respondent)

Representation:

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

Solicitors:
Wiltshire Webb Staunton Beattie Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/337388

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA22/1769 for the construction of a residential housing development in stages, comprising a residential flat building of 11 apartments (Stage 1) and 22 multi-dwelling townhouses (Stage 2) and associated parking facilities, tree removal and landscaping (the proposal), at 8 Augusta Place, Mollymook (Lot 29 in DP 264461) (the site), by Shoalhaven City Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 September 2024. I presided over the conciliation conference. 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. 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 of the EPA Act to grant consent to the development application.

3. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

5. The parties agreed that the changes to the proposal were not minor within the meaning of s 8.15(3) of the EPA Act.

Jurisdictional matters

6. The site is zoned R3 Medium Density Residential pursuant to Shoalhaven Local Environmental Plan 2014 (LEP 2014) and the proposal is permissible with consent. The proposal is consistent with the relevant objectives of the zone (to which regard must be had) as follows:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

7. The site, with an area of 8624.4m², complies with the minimum lot size requirement of 900m² for multi-dwelling housing and residential flat buildings, at cl 4.1A(2) of LEP 2014, as follows:

(2) Development consent must not be granted to development on a lot in a zone shown in Column 2 of the Table to this subclause for a purpose shown in Column 1 of the Table opposite that zone, unless the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the Table.

Column 1	Column 2	Column 3
Multi dwelling housing	R3 Medium Density Residential	900m2
Residential flat buildings	R3 Medium Density Residential	900m2

8. The proposal complies with the height of buildings development standard of 11m, at cl 4.3(2A) of LEP 2014, as the Height of Buildings map does not show a maximum height for the site:

(2A) If the Height of Buildings Map does not show a maximum height for any land, the height of a building on the land is not to exceed 11 metres.

9. The proposal includes earthworks, which are supported by the preliminary engineering concept plans and an integrated water cycle management strategy, which adequately address the relevant matters under cl 7.2(3) of LEP 2014, as follows:

(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

10. I accept the Council’s submission that the site is suitable for the proposal as it has not history of a land use that is potentially contaminating, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

11. Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the local government area (LGA) under Sch 2 and as the site is zoned R3, it applies to the site. There is currently no approved Koala Plan of Management for the LGA so the consent authority, or the Court exercising the functions of the consent authority, must assess whether the proposal is likely to have any impact on koalas or their habitat. I accept the Council’s submission, based on the streamlined Biodiversity Development Assessment Report (BDAR) prepared by Travers Bushfire & Ecology and submitted as part of the application, that the site does not comprise core koala habitat and the proposal is likely to have low or no impact on koalas or their habitat.

12. Chapter 4 of State Environmental Planning Policy (Housing) 2021 applies to the residential flat building component of the proposal. I accept the Council’s submission that the design statement prepared by the architect, Phillip Thalis of Hill Thalis Architects, adequately demonstrates that the proposal is consistent with the design quality principles for residential flat buildings under Ch 4 and the objectives and design criteria under the Apartment Design Guide.

13. Section 28 of the Environmental Planning and Assessment Regulation 2021 is in the following terms:

28 Development applications relating to Biodiversity Conservation Act 2016

(1) A development application for biodiversity compliant development must contain the reason the development is biodiversity compliant development.

(2) A development application that is accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 must contain the biodiversity credits information.

(3) A development application relating to land that is subject to a private land conservation agreement under the Biodiversity Conservation Act 2016 must contain a description of the kind of agreement and the area to which it applies.

(4) In this section—

biodiversity compliant development means—

(a) development to be carried out on biodiversity certified land under the Biodiversity Conservation Act 2016, or

(b) development to which the biodiversity certification conferred by the Threatened Species Conservation Act 1995, Schedule 7, Part 7 applies, or

(c) development for which development consent is required under a biodiversity certified EPI, within the meaning of the Threatened Species Conservation Act 1995, Schedule 7, Part 8.

14. Development consent cannot be granted if the consent authority, or the Court exercising the function of the consent authority, is of the opinion it is likely to have serious and irreversible impacts on biodiversity values, made in accordance with the principles prescribed under s 6.7 of the Biodiversity Conservation Regulation 2017.

15. The BDAR notes that no serious and irreversible impacts will be made on biodiversity values on the site, as no threatened species or ecological communities were recorded within the site. The proposal will, however, result in an impact on 0.78ha of native vegetation, which includes impacts to one vegetation unit including PCT 4025 South Coast Law Hills Red Gum Grassy Forest. Therefore, the proposal triggers the area clearing threshold and entry into the Biodiversity Offsets Scheme is required under s 7.14 of the Biodiversity Conservation Act2016. I accept the Council’s submission that the BDAR meets the jurisdictional requirements under the Biodiversity Conservation Act2016 and that appropriate conditions of consent have been included.

16. State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the proposal at s 2.48(1). Pursuant to s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the Council gave written notice of the application to Endeavour Energy and most recently of the amended application. Endeavour Energy responded with no objection to the proposal subject to conditions, which are incorporated in the conditions of consent at Annexure A.

Conclusion

17. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 3 September 2024 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

18. The orders of the Court are:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $55,000 in full and final settlement of this order and the Court’s earlier orders for costs made on 18 October 2023 and 31 January 2024.

2. The appeal is upheld.

3. Development Application No. DA22/1769 for the staged construction of a residential housing development, comprising a residential flat building with 11 apartments (stage 1) and 22 multi-dwelling townhouses (stage 2), associated accessways, parking facilities, walkways and landscaped areas, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 19 September 2024