Semaan v Goulburn Mulwaree Council

Case •

[2023] NSWLEC 1129

•

23 March 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Semaan v Goulburn Mulwaree Council [2023] NSWLEC 1129
Hearing dates: Conciliation conference on 15 February 2023
Date of orders: 23 March 2023
Decision date: 23 March 2023
Jurisdiction:Class 1
Before: Adam AC
Decision:

The Court orders:

(1) Leave is granted to the Applicants to amend DA/0212/2122, to rely on the amended plans and documents specified in Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants are to pay the Respondent’s costs thrown away as a result of order (1) in the sum of $8,000 within 28 days of the date of this order.

(3) The appeal is upheld.

(4) Development Application No. DA/0212/2122, as amended, at 555 Forest Siding Road, Middle Arm legally known as Lots 154, 155, 266 and 275 DP 750045 and Lot 2 DP 515942 is determined by grant of consent, subject to the conditions of consent contained in Annexure B, except for:

(a) subdivision of the land into two lots;

(b) identification of a building envelope upon the previously proposed Lot 1;

(c) restriction on the use of land for the building envelope and vegetation management for the previously proposed Lot 1; and

(d) Vegetation Management Plan on the previously proposed Lot 1.

Catchwords:

DEVELOPMENT APPLICATION – appeal – actual refusal – farm building – principal dwelling –

secondary dwelling – conciliation conference –agreement between parties – orders made

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.2

Biodiversity Conservation Regulation 2017, cll 7.2, 7.3

Environmental Planning and Assessment Act 1979 ss 4.14, 8.7

Goulburn Mulwaree Local Environmental Plan 2009, cll 7.1A, 7.2

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 3.2; s 6.65; Ch 8 ss 8.5, 8.8, 8.9 (repealed)

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

Category:Principal judgment
Parties: Toni Semaan (First Applicant)
Elias Semaan (Second Applicant)
Goulburn Mulwaree Council (Respondent)
Representation:

Counsel:
A Kliese (Solicitor) (Applicants)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicants)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2022/115663
Publication restriction: Nil

Judgment

  1. This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicants against the refusal by the Respondent on 17 February 2022 of Development Application (DA) 0212/2122.

  2. The DA as originally lodged related to lands legally known as Lots 154, 155, 266, 275 and 276 in DP 750045 and Lot 2 in DP 515942 with a street address of 555 Forest Siding Road, Middle Arm, within the Goulburn Mulwaree Council Local Government Area.

  3. During the course of the proceedings, the DA was amended and the Applicants also determined not to seek approval for aspects of the DA.

  4. The development for which development consent was sought at the end of the proceedings no longer included the use of Lot 276 nor subdivision of the site.

  5. The development for which development consent is sought after the modifications is described as:

  1. Internal alterations and additions and continued use of a mixed use development that would result in:

  1. a 502m2 vehicular and machinery parking shed, proposed for use as a farm building; and

  2. a six-bedroom, two-storey principal dwelling.

  1. Continued use of a structure as a secondary dwelling on Lot 2 which was initially approved as a farm garage under Building Permit No. 38/81 and has been the subject of unauthorised alterations and additions.

  2. Ancillary works including fire hydrant system comprising water storage, pump room, 120,000L rainwater tank and associated stormwater piping, the installation of an onsite effluent management system, and retaining walls and landscape works.

  3. Consolidation of the site.

  1. The original DA was advertised between 26 October 2021 and 9 November 2021. No submissions were received.

  2. The matter had been set down for a hearing, commencing on site. However, prior to that occurring the parties had reached an agreement, and sought that the matter be dealt with under s 34 of the Land and Environment Court Act 1979 (LEC Act). Leave was granted. As there were no objectors to be heard, it was appropriate that the site inspection was dispensed with and the s34 conference was held in Court, but with experts available to contribute to the discussion by Microsoft Teams and also be able to resolve some queries that I had.

  3. Pursuant to s 34(3)(a) of the LEC Act, the parties requested that I dispose of the proceedings in accordance with the terms of the decision set out in the s34 Agreement.

  4. Before I can dispose of the proceedings, s 34(3)(a) requires that I be satisfied that the decision is one which a consent authority can lawfully make (being a decision that the Court could have made while standing in the shoes of Council):

(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a) must dispose of the proceedings in accordance with the decision, and…

  1. In order that I could be satisfied that the decision was one I could make, the parties provided a jurisdictional note to demonstrate how jurisdictional requirements had been met.

Biodiversity Conservation Act 2016 (BC Act)

  1. In the Respondent’s Amended Statement of Facts and Contentions filed on 13 January 2023, Contention 2 was that the consent authority could not be satisfied that the Biodiversity Development Assessment Report was not required to accompany the DA as the proposed development was likely to significantly affect threatened species pursuant to s 7.2(1)(b) of the BC Act. The Respondent’s concern was that the amount of native vegetation to be cleared would exceed the Biodiversity Offsets Scheme threshold, due to the area of vegetation to be cleared exceeding 1 ha (cl 7.2 Biodiversity Conservation Regulation 2017, when regard was had to cl 7.1(3)).

  2. Due to the Applicants amending the application by removing the subdivision component originally proposed, the ecology experts in the Ecology Joint Expert Report, filed on 31 January 2023, were satisfied that the threshold area of clearing was not exceeded and that no other vegetation clearing was required for Asset Protection Zones or other purposes.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

  1. The Resilience and Hazards SEPP provides a statewide planning approach to the remediation of contaminated land and this applies to the site. Section 4.6 of the SEPP imposes a jurisdictional prerequisite on the consent authority:

4.6 Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

  1. A contamination report had been prepared (GeoEnvironmental Engineering Targeted Contamination Investigation dated 4 October 2022) and was included in the Notice of Motion filed on 7 December 2022 as Tab 5. The report included that the likelihood of contamination was low.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

  1. Following the amendments to the DA, Pt 4.2 of BC SEPP does not apply, as no development is proposed in land zoned C3 Environmental Management.

  2. Part 3.2 of BC SEPP does apply. Section 1.5 of the Flora and Fauna Assessment dated 10 February 2023 assessed whether the site is likely to contain koala habitat. I am satisfied on the basis of the report that the land is not potential koala habitat so that a consent authority is not prevented from granting development consent on that ground.

  3. Chapter 8 of BC SEPP has been repealed but continues to apply to the DA by reason of the transitional provisions in s 6.65:

6.65 Savings and transitional provisions

(1) The former provisions continue to apply, and the other provisions of this Chapter do not apply, to an application for development consent lodged, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022.

(2) A master plan adopted and in force under section 10.46 immediately before its repeal by State Environmental Planning Policy Amendment (Water Catchments) 2022 is taken, on and from the commencement of this Chapter, to have effect as a master plan within the meaning of Part 6.3, Division 5.

(3) In this section—

former provisions means—

(a) Chapters 6–12 as in force immediately before their repeal by State Environmental Planning Policy Amendment (Water Catchments) 2022, and

(b) the provisions of each environmental planning instrument amended by State Environmental Planning Policy Amendment (Water Catchments) 2022 that would be in force if the instrument had not been amended by that Policy.

  1. The site is within the Sydney drinking water catchment, pursuant to the now repealed s 8.5:

8.5 Declaration of Sydney drinking water catchment

For the purposes of section 3.26(1) of the Act, the area of land identified as the Sydney drinking water catchment on the Sydney Drinking Water Catchment Map is declared to be the Sydney drinking water catchment.

  1. A consent authority cannot grant development consent to development within the Sydney drinking water catchment unless the development will have a neutral or beneficial effect on water quality:

8.8 Development consent cannot be granted unless neutral or beneficial effect on water quality

(1) A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality.

(2) For the purposes of determining whether the carrying out of the proposed development on land in the Sydney drinking water catchment would have a neutral or beneficial effect on water quality, the consent authority must, if the proposed development is one to which the NorBE Tool applies, undertake an assessment using that Tool.

  1. The Applicants provided a Soil and Site Assessment of Onsite Waste Disposal in a report prepared by Harris Environmental Consulting dated 22 December 2020. The report contains a NorBE assessment that concluded that the proposed wastewater disposal area was compliant with the requirements of s 8.8. The report was prepared in relation to the original more extensive proposal, but I am satisfied that the finding applies equally to the application in its final form.

  2. Section 8.9 provided that:

8.9 Development that needs concurrence of Regulatory Authority

(1) A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment except with the concurrence of the Regulatory Authority.

(2) For the purposes of section 3.18(3) of the Act, the matters that are to be taken into consideration by the Regulatory Authority in deciding whether to grant concurrence are—

(a) whether the development incorporates Water NSW’s current recommended practices and standards, and

(b) if the development does not incorporate those practices and standards, whether the alternative practices that relate to the protection of water quality that have been adopted in relation to the development will achieve outcomes not less than those achieved by Water NSW’s current recommended practices and standards, and

(c) whether the development would have a neutral or beneficial effect on water quality.

  1. On 8 February 2023, WaterNSW provided their concurrence. The letter of concurrence is included in the proposed conditions of consent, and the conditions required by WaterNSW are incorporated into the conditions.

  2. The letter from WaterNSW includes explanation of WaterNSW’s considerations, and I am satisfied that the requirements of s 8.8 of the BC SEPP are fully met.

Goulburn Mulwaree Local Environmental Plan 2009 (GMLEP)

  1. The applicable local environmental plan is GMLEP. Under the plan the subject land is zoned RU 2 Rural Landscape:

Zone RU2 Rural Landscape

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To protect, manage and restore areas with high conservation, scientific, cultural or aesthetic values.

• To protect and enhance the water quality of receiving watercourses and groundwater systems and reduce their degradation.

• To preserve environmentally sensitive land, including catchment areas, and prevent development likely to result in environmental harm.

• To minimise the potential for conflict between adjoining land uses.

2 Permitted without consent

Environmental facilities; Environmental protection works; Extensive agriculture; Farm buildings; Home occupations; Roads

3 Permitted with consent

Agricultural produce industries; Aquaculture; Cellar door premises; Dwelling houses; Hardware and building supplies; Home industries; Kiosks; Landscaping material supplies; Markets; Plant nurseries; Roadside stalls; Rural supplies; Stock and sale yards; Timber yards; Any other development not specified in item 2 or 4

4 Prohibited

Airports; Amusement centres; Attached dwellings; Boat building and repair facilities; Business premises; Camping grounds; Caravan parks; Dual occupancies; Exhibition homes; Exhibition villages; Feedlots; Freight transport facilities; Group homes; Heavy industrial storage establishments; Home occupations (sex services); Hotel or motel accommodation; Industrial retail outlets; Industrial training facilities; Industries; Local distribution premises; Marinas; Mooring pens; Mortuaries; Multi dwelling housing; Passenger transport facilities; Registered clubs; Residential flat buildings; Restricted premises; Retail premises; Rural industries; Rural workers’ dwellings; Semi-detached dwellings; Seniors housing; Serviced apartments; Service stations; Sex services premises; Storage premises; Transport depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste or resource management facilities; Wharf or boating facilities; Wholesale supplies

  1. Dwelling houses are permissible with consent, this includes both the proposed principal and secondary dwelling. Farm buildings do not require development consent.

  2. Clause 7.1A requires consideration with respect to earthworks:

7.1A Earthworks

(1) The objectives of this clause are as follows—

(a) to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features of the surrounding land,

(b) to allow earthworks of a minor nature without separate development consent.

(2) Development consent is required for earthworks, unless—

(a) the work is exempt development under this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, or

(b) the consent authority is satisfied the earthworks are of a minor nature.

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

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

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

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

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

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

(f) the likelihood of disturbing Aboriginal objects or other relics,

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

  1. I have considered the UrbanLink Site Plan 01 and Site Plan 02 (dated 09 February 2023), and other documentation describing the DA and the site and I am satisfied that the plans and conditions of consent satisfactorily address the matters required to be considered by cl 7.1A.

  2. The biodiversity aspects of the proposal are to be considered under cl 7.2 of GMLEP:

7.2 Terrestrial biodiversity

(1) The objectives of this clause are to protect, maintain or improve the diversity of the native vegetation, including—

(a) protecting biological diversity of native flora and fauna, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of threatened species, communities or populations and their habitats.

(2) This clause applies to development on land that is identified as “Biodiversity” on the Terrestrial Biodiversity Map.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered a report that addresses the following matters—

(a) identification of any potential adverse impact of the proposed development on any of the following—

(i) a native vegetation community,

(ii) the habitat of any threatened species, population or ecological community,

(iii) a regionally significant species of plant, animal or habitat,

(iv) a habitat corridor,

(v) a wetland,

(vi) the biodiversity values within a reserve, including a road reserve or a stock route, and

(b) a description of any proposed measures to be undertaken to ameliorate any such potential adverse impact.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is consistent with the objectives of this clause and—

(a) the development is designed, sited and managed to avoid the potential adverse environmental impact, or

(b) if a potential adverse impact cannot be avoided, the development—

(i) is designed and sited so as to have minimum adverse impact, and

(ii) incorporates effective measures so as to have minimal adverse impact, and

(iii) mitigates any residual adverse impact through the restoration of any existing disturbed or modified area on the site.

  1. Part of the site is mapped as “Biodiversity”.

  2. I am satisfied from the Flora and Fauna Assessment Report dated 10 February 2023 which accompanied the DA and the agreement of the ecological experts, that the consideration required by cl 7.2(3) has properly addressed the issues, and that the conditions of consent related to the issues are appropriate.

  3. When the original DA was lodged, subdivision was proposed and a bush fire safety authority was required pursuant to s 100B of the Rural Fires Act 1997 and the applicants nominated that the DA should be treated as integrated development.

  4. In its final form, the DA no longer includes subdivision, and a bush fire safety authority is therefore no longer required. However, s 4.14(1) of the EPA Act requires that:

4.14 Consultation and development consent—certain bush fire prone land (cf previous s 79BA)

(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) 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

  1. A Bush Fire Assessment Report dated 6 December 2022 accompanied the DA and in the Bushfire Joint Expert Report filed on 30 January 2023, the bushfire experts agreed that the assessment report was satisfactory and that the conditions of consent were appropriate.

  2. The parties were not aware of any other jurisdictional reasons preventing the Court from making the orders proposed and approving the DA.

  3. The Court notes that:

  1. Goulburn Mulwaree Council as the relevant consent authority has agreed pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicants amending the DA (0212/2122), the subject of these proceedings, to rely on the documents specified in Annexure A.

  2. The Applicants filed the amended application with the Court on 15 February 2023.

  3. The Applicants are to pay the Respondent’s costs thrown away as a result of the amendment in the amount of $8,000 within 28 days of the date of these orders.

  1. The Court orders that:

  1. Leave is granted to the Applicants to amend DA/0212/2122, to rely on the amended plans and documents specified in Annexure A.

  2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants are to pay the Respondent’s costs thrown away as a result of order (1) in the sum of $8,000 within 28 days of the date of this order.

  3. The appeal is upheld.

  4. Development Application No. DA/0212/2122, as amended, at 555 Forest Siding Road, Middle Arm legally known as Lots 154, 155, 266 and 275 DP 750045 and Lot 2 DP 515942 is determined by grant of consent, subject to the conditions of consent contained in Annexure B, except for:

  1. subdivision of the land into two lots;

  2. identification of a building envelope upon the previously proposed Lot 1;

  3. restriction on the use of land for the building envelope and vegetation management for the previously proposed Lot 1; and

  4. Vegetation Management Plan on the previously proposed Lot 1.

P Adam

Acting Commissioner of the Court

Annexure A

Annexure B

**********

Amendments

23 March 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to the orders to include order (5) in order (4)(d)

Decision last updated: 23 March 2023

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