Serenitas Management Pty Ltd v MidCoast Council

[2023] NSWLEC 1257

Land and Environment Court

New South Wales

Medium Neutral Citation:

Serenitas Management Pty Ltd v MidCoast Council [2023] NSWLEC 1257

Hearing dates:

Conciliation conference held on 5 May 2023

Date of orders:

31 May 2023

Decision date:

31 May 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The Applicant is granted leave to rely upon the amended plans and documents described in Condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Development Application DA2022/0188, as amended seeking removal of vegetation, drainage and earthworks to prepare a site for a Manufactured Home Estate, referred to as a Lifestyle Resort comprising 163 sites, with parking, drainage and road infrastructure on Lot 2 Deposited Plan (DP) 614397, also known as 70 Carmona Lane, Forster, and construction of a public road over the adjoining Lot 305 DP 1240455, from The Southern Parkway towards the eastern boundary of the site is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – manufactured housing estate – ecological and hydrological assessment - conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.47, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Great Lakes Local Environmental Plan 2014, cll 2.3, 5.1, 5.21,7.1,7.2,7.7,7.21

Land and Environment Court Act 1979, s34

Local Government Act 1993, s 68

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021

Rural Fires Act 1997, s100B

Roads Act 1993, s 138

State Environmental Planning Policy (Housing) 2021, s 125

State Environmental Planning Policy (Koala Habitat Protection) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, ss 2.10, 4.6, Ch 4

Water Management Act 2000, s 91

Texts Cited:

Great Lakes Development Control Plan 2014

Category:

Principal judgment

Parties:

Serenitas Management Pty Ltd (Applicant)
MidCoast Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
H Irish (Respondent)

Solicitors:
Colin Biggers & Paisley Pty Ltd (Applicant)
Local Government Legal (Respondent)

File Number(s):

2022/184770

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA2022/0188 (the DA) by the MidCoast Council (the Council), seeking removal of vegetation, drainage, and earthworks to prepare a site for a Manufactured Home Estate (MHE) which as amended is comprising 163 sites, with parking, drainage and road infrastructure on Lot 2 Deposited Plan (DP) 614397, also known as 70 Carmona Lane, Forster (the site). The MHE is also referred to as a Lifestyle Resort. The application includes the construction of a public road on adjoining land, being Lot 305 DP 1240455, that connects The Southern Parkway to the site.

Background

2. The DA was lodged with Council on 7 March 2022. The original DA was notified to residents, with four submissions received. The DA was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, was held in person, after a site view.

6. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA2022/0188, with conditions.

7. 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 making a determination pursuant to s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and of other relevant jurisdictional requirements, to grant consent to Development Application DA2022/0188, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. The site contains native vegetation, including vegetation that is mapped as having biodiversity values (BV), pursuant to the Biodiversity Conservation Act 2016 (BC Act). The site contains plant species identified as Endangered Ecological Communities (EEC). The amended DA considers and seeks to preserve areas of EEC and mapped as having BV and is supported by a Biodiversity Development Assessment Report (BDAR). I am satisfied that any impact to the EEC is sufficiently assessed and mitigated, and that the relevant provisions of the BC Act are addressed.

9. The site is bisected and outlined by watercourses, as defined in the Water Management Act 2000 (WM Act). The proposed works to realign the watercourse within the site requires a controlled activity approval, pursuant to s 91(2) of the WM Act. The NSW Department of Planning and Environment (DPE) have provided General Terms of approval (GTA’s), which have been adopted into the amendments to the DA and conditions of consent. I am satisfied that the relevant provisions of the WM Act are addressed.

10. Access to the site is proposed via a local road to be constructed connecting to The Southern Parkway, which is classified under the Roads Act 1993 (Roads Act). Council is the relevant roads authority for this road, any proposed works are over Council land. I am satisfied that the amended DA and conditions of consent address the relevant requirements of the Roads Act.

11. The site is mapped as bushfire prone, and therefore subject to consideration of s 4.14 of the EPA Act and s 100B of the Rural Fires Act 1997 (RF Act). To demonstrate that residential development on the site, NSW Rural Fire Service (RFS) has provided GTA’s in concurrence, after review of the (amended) DA. RFS is satisfied that the amendments made to the DA have considered and adopted the relevant Planning for Bushfire Protection guidelines, by providing appropriately sized Asset Protection Zones around the margins of the lots. The amended DA is supported by a s 100B certificate, issued by RFS on 5 May 2023. The amended DA relevantly addresses the requirements of the EPA Act and RF Act.

12. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements are specifically addressed:

1. Great Lakes Local Environmental Plan 2014 (GLLEP):

1. Pursuant to cl 2.3 of the GLLEP, the proposed residential development is situated over land zoned R2 Low Density Residential, E3 Productivity Support, C2 Environment Conservation and SP2 Infrastructure. A MHE is permissible with consent, as described in the Local Government Act 1993 (LG Act). The proposed development as described to the Court is permissible with consent, relating to relevant zones on the site and adjoining land. I am satisfied that the amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the GLLEP, and specifically considered are cll 5.21, 7.1, 7.2, 7.7 and 7.21 as described to the Court.

2. State Environmental Planning Policy (Housing) 2021 (SEPP Housing):

1. The proposed development seeks to construct a MHE, which engages s 125 of the SEPP Housing. The DA is supported by amended plans that demonstrate that services and community facilities will be provided to future residents, and a visual assessment that considers the aesthetic and character of the local area. I am satisfied that the requirements of s 125(1) are addressed.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site is located on land mapped as being within a coastal environment area, pursuant to s 2.10 of the SEPP Resilience. The amended DA is supported by hydrological and hydrogeological modelling that considers and minimises any impacts to the hydrological and ecological environments associated with the site. I am satisfied that any adverse impacts have been considered and are minimised, which address s 2.10(1).

2. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. The site is located adjacent to an existing quarry and concrete batching plant. The amended DA is supported by a Stage 1 and 2 (general) contamination assessment and a preliminary radiological contamination assessment. Based on the supporting documents to the amended DA, I am satisfied that the Council has appropriately assessed that the site does not require remediation prior to grant of consent, and which together with the conditions of consent to address any unexpected finds, the relevant requirements of s 4.6 are addressed.

4. State Environmental Planning Policy (Koala Habitat Protection) 2021 (SEPP Koala):

1. The site is located within the MidCoast Local Government Area, and subject to the provisions of the SEPP Koala. The amended DA is supported by a BDAR that has assessed no impact to Koalas. The site is not assessed as being core Koala habitat. I am satisfied the relevant provisions of the SEPP Koala have been considered and are addressed.

5. Great Lakes Development Control Plan 2014 (GLDCP):

1. The original and amended DA was publicly notified in accordance with the GLDCP, with 7 and 19 submissions received, respectively. The relevant requirements of the GLDCP are generally complied with, based on the amended plans and supporting documents that support consideration of the DA, and which are described in the agreed conditions of consent. I am satisfied that the issues raised by residents have been considered in the merit assessment of Council and addressed where appropriate.

13. The original and amended DA was referred to relevant authorities, pursuant to s 4.47 of the EPA Act including RFS and DPE. Responses have been received from these concurrence authorities with regards to the amended application and GTA’s adopted where required.

14. The MHE requires approval to use the land for this intended purpose, pursuant to the LG Act. The conditions of consent (Condition 11) requires that a s 68 approval be obtained under the LG Act prior to use of the site for the purpose of a MHE.

15. The requirements of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (MHE Reg) have been assessed. The DA is supported by a MHE Regulation Compliance Assessment Report, that indicates the provisions relating to design, construct and operate a MHE are satisfied. The conditions of consent also address the relevant requirements of the MHE Reg. I am satisfied that the requirements of the MHE Reg are addressed.

16. Pursuant to s 23 of the EPA Reg, the DA has satisfied the Court with the provision of consent from relevant landowners of intended works. I understand that Council owns the parcel of land for the public road proposed on Lot 305 DP 1240455 and agrees to these works.

Consideration of Council

17. The Council submitted written reasons for reaching the agreement with the applicant, that was reached after a merit assessment and consideration of relevant jurisdictional requirements. Pursuant to s 34(3) of the LEC Act, the Council submit the following statements in reaching this agreement:

"a. the development application proposes a MHE on the R2 zoned land which has been designed to exceed the minimum requirements specified in Division 3 and Division 4 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021,

b. the development application seeks to avoid groundwater impacts,

c. the development application proposes drainage works including the diversion of one first order watercourse and the creation of riparian zones to accommodate that diversion and existing watercourses,

d. the development application proposes swales and bunds and a retardation and stilling basin sized to manage floodwater,

e. the development application proposes stormwater management including bioretention and detention basins and flow dispersal structures,

f. the development application is now further amended –

i. to increase the minimum capacity of MHE stormwater bioretention basin to conform with the Applicant’s MUSIC modelling

ii. to increase the capacity of the MHE stormwater detention basin to satisfy OSD requirements

iii. to relocate flow dispersal structures, and manage outflow to mimic pre-development (1:1 year event and smaller) surface water flows

iv. to separate the management and treatment of stormwater dispersed by the MHE and stormwater dispersed by the Collector Road,

v. to amend the layout so as to avoid biodiversity impacts and produce material that constitutes an accepted biodiversity assessment,

vi. to provide an amended design and modelling and evaluations that demonstrate that changes to flood and water regimes will not harm significant on-site and proximal habitats,

subject to future detailed design of the stormwater management infrastructure and the Collector Road which is to include consideration of the lining of the bioretention and detention basins to protect the Collector Road and associated retaining walls from seepage and saturation impacts,

g. the Applicant agrees to each of the 163 MHE lots having a minimum site area of not less than 210 m2 per lot and to maintain an area of not less than 25% of the total area of each MHE lot as pervious soil (excluding dwelling footprint, driveways, entrance paths, covered outdoor areas, paved areas and the like) so as to conform with the Applicant’s MUSIC modelling to achieve stormwater quality outcomes and achieve agreed ecological outcomes,

h. the development application is now further amended to make more particular provision for vegetation works subject to a Vegetation Management Plan to be prepared by the Applicant and approved by Council so as to avoid and minimise impact on the retention of existing bushland including on the C2 zoned land and the (formerly) IN1 zoned land, and other areas to ensure the ongoing management of bushland and vegetation in riparian zones, in swales, and in the retardation and stilling basin; management incorporates conservation, enhancement, restoration / rehabilitation and construction of habitat,

i. the development application is now further amended to make more particular provision for landscaping and revegetation including but not limited to the IN1 zoned land and minimum deep soil landscaping on each of the 163 MHE lots, and in the Collector Road and private road verges, so as to ensure consistency with the objectives for the R2 zone and have regard to the objectives of zones adjacent to the R2 zone including neighbouring land in the RU2 zone,

j. the Applicant agrees to prepare a Construction Management Plan which is to be subservient to the Vegetation Management Plan."

Grant of consent

18. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

19. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed and issues raised by the objectors have been considered by the amendments made to the DA.

20. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA2022/0188 can be determined by the granted consent.

21. 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.

22. The Court orders:

1. The Applicant is granted leave to rely upon the amended plans and documents described in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Application DA2022/0188, as amended seeking removal of vegetation, drainage and earthworks to prepare a site for a Manufactured Home Estate, referred to as a Lifestyle Resort comprising 163 sites, with parking, drainage and road infrastructure on Lot 2 Deposited Plan (DP) 614397, also known as 70 Carmona Lane, Forster, and construction of a public road over the adjoining Lot 305 DP 1240455, from The Southern Parkway towards the eastern boundary of the site is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

22.184770 Annexure A (874291, pdf)

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Decision last updated: 31 May 2023