Shorehouse Projects Pty Ltd v Wingecarribee Shire Council

[2025] NSWLEC 1034

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shorehouse Projects Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1034

Hearing dates:

Conciliation conference on 15 January 2025

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No. DA23/1046, as amended, is determined by the grant of consent, subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – multi dwelling housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.15, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.64

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Wingecarribee Local Environmental Plan 2010, cll 2.3, 2.6, 2.7, 4.1, 7.3

Category:

Principal judgment

Parties:

Shorehouse Projects Pty Ltd (Applicant)
Wingecarribbee Shire Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
Shaw Reyonlds Lawyers Pty Ltd (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/353373

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA23/1046. The development application seeks consent for the demolition of existing structures and construction of a multi dwelling house development for five dwellings (DA) at 10 and 12 Oxley Drive, Mittagong (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending development application DA23/1046 in accordance with the documents listed below (amended DA):

1. Amended Architectural Plans prepared by sh.studio (issue 5) dated 8 January 2025:

1. General Legend A001;

2. Legend – Adaptable units A002;

3. Site Survey A003;

4. Demolition Plan A004;

5. Site Analysis A005;

6. Setbacks Analysis A005;

7. Site Plan A006;

8. Strata subdivision A007;

9. Landscape plan A008;

10. Ground Floor A100;

11. First Floor A101;

12. Roof A102;

13. Elevations A200 (West and East);

14. Elevations A201 (South and East);

15. Elevations A202 (North, West and East);

16. Sections A300 (Cross Sections 1 and 2 and 1 and 5);

17. Sections A301 (Cross Sections 3and 5 and 2, 3 and 4);

18. Control Plan – Ground Floor FSR A401;

19. Control Plan –First Floor FSR A402;

20. Control Plan – Landscape A403;

21. Shadow Diagram (9am) A500;

22. Shadow Diagram (10am) A501;

23. Shadow Diagram (11am) A502;

24. Shadow Diagram (12pm) A503;

25. Shadow Diagram (1pm) A504;

26. Shadow Diagram (2pm) A505;

27. Shadow Diagram (3pm) A506;

28. Unit 5 Shadow Axo A507;

29. Unit 5 Shadow Axo A508;

30. Unit 5 Shadow Axo A509;

31. Shadow Axo – Unit 3 and Unit 4 A510;

32. Shadow Axo – Unit 3 and Unit 4 A511;

33. Shadow Axonometric – Unit 2 A512;

34. Shadow Axonometric – Unit 2 A513;

35. Window/Door Schedule A600;

36. Window/Door Schedule A601;

37. 3D Views, A701;

38. 3D Views, A702; and

39. Finishes and materials Schedule A603.

2. Amended Civil Engineering Plans prepared by Civil & Stormwater Engineering Services Pty Ltd:

1. General Notes, Locality Plan and Drawing Schedule, drawing no. C000 (issue G, dated 11 December 2024);

2. Civil Works Layout Plan, drawing no. C101 (issue F, dated 11 December 2024);

3. Driveway Profile Longitudinal Sections, drawing no. C201 (issue C, dated 6 December 2024);

4. Construction Notes and Details Sheet, drawing no. C301 (issue A, dated 17 June 2024);

(Swept Path Option 2)

5. General Notes, Locality Plan and Drawing Schedule, drawing no. C000 (Issue F, dated 6 December 2024);

6. Swept Path Layout Plan Sheet 1 of 9, drawing no. C401 (Issue F, dated 6 December 2024);

7. Swept Path Layout Plan Sheet 2 of 9, drawing no. C401.1 (Issue F, dated 6 December 2024);

8. Swept Path Layout Plan Sheet 3 of 9, drawing no. C402 (Issue F, dated 6 December 2024);

9. Swept Path Layout Plan Sheet 4 of 9, drawing no. C402.1 (Issue F, dated 6 December 2024);

10. Swept Path Layout Plan Sheet 5 of 9, drawing no. C403 (Issue F, dated 6 December 2024);

11. Swept Path Layout Plan Sheet 6 of 9, drawing no. C403.1 (Issue F, dated 6 December 2024);

12. Swept Path Layout Plan Sheet 7 of 9, drawing no. C404 (Issue F, dated 6 December 2024);

13. Swept Path Layout Plan Sheet 8 of 9, drawing no. C404.1 (Issue F, dated 6 December 2024); and

14. Swept Path Layout Plan Sheet 9 of 9, drawing no. C405 (Issue C, dated 6 December 2024).

3. Shadow Diagrams (issue 05) prepared by sh.studio dated 18 December 2024, including:

1. Shadow Diagram (9am), drawing no. A500;

2. Shadow Diagram (10am), drawing no. A501;

3. Shadow Diagram (11am), drawing no. A502;

4. Shadow Diagram (12pm), drawing no. A503;

5. Shadow Diagram (1pm), drawing no. A504;

6. Shadow Diagram (2pm), drawing no. A505;

7. Shadow Diagram (3pm), drawing no. A506;

8. Unit 5 Shadow Axo, drawing no. A507;

9. Unit 5 Shadow Axo, drawing no. A508;

10. Unit 5 Shadow Axo, drawing no. A509;

11. Shadow Axo – Unit 3 and Unit 4, drawing no. A510;

12. Shadow Axo – Unit 3 and Unit 4, drawing no. A511;

13. Shadow Axonometric – Unit 2, drawing no. A512; and

14. Shadow Axonometric – Unit 2, drawing no. A513.

4. Landscape Plans (issue 5) prepared by sh.studio dated 19 December 2024, including:

1. Coverpage, drawing no. L000;

2. Landscape Plan, drawing no. L001; and

3. Typical Details, drawing no. L002.

5. BASIX and NatHERS Certificates prepared by Illawarra BASIX Solutions on 8 January 2025:

1. BASIX Certificate No. 1371799S_03;

2. NatHERS Certificate No. 0009828369_01;

3. BASIX Certificate No. 1371478S_03;

4. NatHERS Certificate No. 0009828393_01;

5. BASIX Certificate No. 1371801S_03;

6. NatHERS Certificate No. 0009828377_01;

7. BASIX Certificate No. 1371805S_03;

8. NatHERS Certificate No. 0009828419_01;

9. BASIX Certificate No. 371813S_03; and

6. NatHERS Certificate No. 0009828401_01.

3. 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 15 January 2025. I presided over the conciliation conference.

4. As part of 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 for the amended DA and granting development consent to the amended DA subject to conditions.

5. The parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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.

Jurisdictional Prerequisites

6. 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 the jurisdictional prerequisites have been satisfied. 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, as set out below.

7. I am satisfied that owner’s consent accompanied the DA. The DA was lodged to the Respondent on 27 March 2023. The Respondent notified the DA between 11 April to 12 May 2023. No submissions were received.

Rural Fires Act 1997

8. The site is bushfire prone land as shown on Council’s mapping. The DA was referred to the Rural Fires Services, who provided General Terms of Approval (GTAs). The conditions of the GTAs have been included in the conditions of consent at Annexure A (condition 103). I accept the parties’ agreement that s 100B of the Rural Fires Act 1997 has been satisfied.

Wingecarribee Local Environmental Plan 2010

9. The site is zoned R3 Medium Density Residential. The proposed development for multi dwellings is permitted with consent and I have had regard to the objectives of the zone (cl 2.3). Strata subdivision and demolition are permitted with consent (cll 2.6 and 2.7). Strata subdivision is expressly excluded from cl 4.1 minimum subdivision lot size.

10. Clause 7.3 Earthworks applies to the amended DA. The jurisdiction statement at paragraph 39 details the parties’ consideration of the provisions, based on technical information including the suite of stormwater information prepared by Civil & Stormwater Engineering Services (civil plans), the Statement of Environmental Effects prepared by LEP Environmental Planning dated February 2023 (SEE) and Waste Management Plan prepared by Shorehouse Projects dated 16 February 2023. I accept the parties’ agreement that the provisions have been adequately considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the amended DA as the site is located within the Sydney Drinking Water Catchment. Concurrence from Water NSW has been sought pursuant to s 6.64, which was granted.

12. I accept the parties’ agreement that the provisions have been satisfied on the basis of the Water NSW concurrence, SEE, civil plans, and jurisdictional statement. The conditions within the Water NSW concurrence have been imposed as conditions of consent at Annexure A (condition 104).

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and Environmental Planning and Assessment Regulation 2021

13. Due to the lodgement date of the DA, State Environmental Planning Policy (Sustainability) 2022 does not apply pursuant to s 4.2. The parties agree and I accept that the amended DA is accompanied by amended BASIX Certificates that meet the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and s 27 of the EPA Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The SEE details that the site has a history of residential use and no evidence of potential contamination sources. Accordingly, the parties submit and I accept that the provisions of s 4.6 of SEPP RH have been addressed.

Conclusion

15. 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.

16. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

17. I have considered the jurisdictional prerequisites 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 Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. DA23/1046, as amended, is determined by the grant of consent, subject to the conditions set out in Annexure “A”.

S Porter

Commissioner of the Court

**********

Annexure A

Decision last updated: 23 January 2025