Skelly v Lake Macquarie City Council

[2024] NSWLEC 1004

Land and Environment Court

New South Wales

Medium Neutral Citation:

Skelly v Lake Macquarie City Council [2024] NSWLEC 1004

Hearing dates:

Conciliation conference on 21 December 2023

Date of orders:

18 January 2024

Decision date:

18 January 2024

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application number DA/3319/2021, seeking consent for one into three lot Torrens title subdivision at Lot 76 in Deposited Plan 12507, known as 2 Ilford Avenue, Buttaba, subject to the conditions of consent at Annexure 'A'.

Catchwords:

DEVELOPMENT APPLICATION – refused – conciliation conference – subdivision of one lot into three lots and associated works– agreement between parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 7, Div 1, ss 7.2, 7.3

Biodiversity Conservation Regulation 2017

Coal Mine Subsidence Compensation Act 2017, s 22

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, s 38, Sch 7

Lake Macquarie Local Environmental Plan 2014, cll 2.3, 2.6, 4.1, 7.1, 7.2, 7.5, 7.7, 7.21

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

Texts Cited:

NSW Environment Protection Authority, Managing Land Contamination Planning Guidelines SEPP 55 - Remediation of Land

Category:

Principal judgment

Parties:

Alison Skelly (Applicant)
Lake Macquarie City Council (Respondent)

Representation:

Counsel:
G Mckee (Solicitor) (Applicant)
J Smith (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Lake Macquarie City Council Corporate Legal Office (Respondent)

File Number(s):

2023/201425

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Development Application DA/3319/2021 was lodged with Lake Macquarie City Council (Respondent) by Miss Skelly (Applicant) on 20 December 2021 for the subdivision of one lot into three Torrens title lots, tree removal and stormwater infrastructure.

2. The Application was refused by the Respondent on 30 May 2023.

3. The Applicant has appealed the Respondent’s decision pursuant s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The site is Lot 76, Deposited Plan DP 12507 with the street address of 2 Ilford Ave, Buttaba, NSW 2283. Lot 76 has a land area of 1720.4 m² and is roughly rectangular, oriented approximately on a southeast to northwest axis, with a 26 metre frontage to Ilford Ave and an 85 metre frontage to Canowie Crescent. The proposed subdivision would create 3 lots, Lot 1 at the southeast of 600 m², a central lot of 520.4 m² and a north-western Lot 3 of 600 m².

5. The Court allocated the matter to conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I was assigned to preside over the conciliation conference. The conciliation conference was scheduled for 21 December 2023, to be held by MS Teams.

6. At the commencement of the conference, the parties advised the Court that an agreement pursuant to s 34(3) of the LEC Act had been reached. The decision agreed to by the parties is that the appeal is upheld, and the Development Application approved, subject to the conditions of consent annexed to this judgment.

7. Section 34(3) of the LEC Act states:

(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

(b) must set out in writing the terms of the decision.

8. As the parties have reached an agreement, I am required to dispose of the proceedings in accordance with their decision, provided that the agreement is one that the Court could have made in the proper exercise of its functions. For the purposes of the proceedings, the Court is standing in the shoes of the consent authority. I must be satisfied that there is no jurisdictional impediment to making the decision reached by the parties. I am not required, and have not, made any assessment of the merits of the proposal for which development consent was sought against the discretionary matters that arise pursuant to s 4.15 of the EPA Act.

9. The parties provided to the Court a Jurisdictional Note, which identified the jurisdictional matters arising in the case and explained how they had been addressed.

10. A number of different pieces of legislation contain provisions which need to be addressed in my evaluation.

Biodiversity Conservation Act 2016

11. The Development Application was accompanied by an assessment of the test of significance of the proposed development pursuant to Pt 7, Div 1, ss 7.2 and 7.3 of the Biodiversity Conservation Act 2016 (BC Act).

12. The Biodiversity Development Assessment Report (BDAR) identified that the site contained Cabbage Gum, Forest Red Gum and Flax-Leaved Paperbark, Floodplain Forest of the Central Coast. This vegetation community forms part of the complex of communities which collectively constitute the River- Flat Eucalypt forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions - Endangered Ecological Community (River-Flat Eucalypt Forest EEC).

13. The BDAR requires seven offset credits for the impact on 0.18 ha of the River-Flat Eucalypt Forest EEC, and seven offset credits for the impact on the bat Myotis macropus.

14. In addition, the agreed Condition of Consent 23 requires the planting of 20 suitable Australian native tree species from the River- Flat Eucalypt Forest EEC in the road reserve.

15. I am satisfied that the requirements of the Biodiversity Conservation Act 2016 and the Biodiversity Conservation Regulation 2017 have been addressed.

Coal Mine Subsidence Compensation Act 2017

16. The site is located within a mine subsidence district and s 22 of the Coal Mine Subsidence Compensation Act 2017 requires approval from Subsidence Advisory NSW (The need to require this approval results in the proposed development being classified as integrated development).

17. General Terms of Approval were received from Subsidence Advisory NSW on 23 March 2022 and have been included in the Conditions of Consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RHSEPP) requires the consent authority to consider whether the site is contaminated before the Development Application can be determined. There is no evidence in the Council’s records of the use of the land for any purpose listed in Table 1 of the Managing Land Contamination Planning Guidelines SEPP 55 - Remediation of Land. I am satisfied that the land is not contaminated and is suitable for the purpose for which the proposed development is to be carried out in accordance with cl 4.6(1) RHSEPP.

19. The use of the site is proposed to remain as residential. Accordingly, cl 4.6 (2) RHSEPP is not engaged and consideration of the findings of a preliminary investigation of the site is not required.

20. The site is zoned R2 Low Density Residential and has been used for residential purposes since 2017. There is no evidence of potentially contaminating land activities occurring on the site.

BASIX requirements

21. The Development Application is not for BASIX development, as it involves a Torrens Title subdivision, and is not for the construction of any dwellings (Schedule7 Environmental Planning and Assessment Regulation 2021).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. The Development Application seeks consent for clearing of vegetation in a non- rural area. The application is supported by a BDAR and an Arborist’s report. The BDAR addresses koala habitat protection and concludes that the land does not constitute core koala habitat.

Lake Macquarie Local Environmental Plan 2014

23. Lake Macquarie Local Environmental Plan 2014 (LMLEP 2014) is the applicable local environmental planning instrument.

24. In the Land Use table to LMLEP 2014, the land is zoned R2 Low Density Residential. The proposed development is permissible with consent.

25. Clause 2.3(2) of LMLEP 2014 requires that the consent authority must have regard to the objectives of the zone when determining a Development Application in respect of land within that zone. The objectives of R2 zone are:

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

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage development that is sympathetic to the scenic, aesthetic and cultural heritage qualities of the built and natural environment.

26. I am satisfied that the proposed development, subject to the conditions of approval, is compatible with the zone objectives.

Clause 2.6 Subdivision Consent Requirements

27. Subdivision is permissible with development consent. 

Clause 4.1 Minimum subdivision lot size

28. The minimum subdivision lot size shown on the Minimum Lot Size Map is 450 m². All three of the proposed new lots will be greater than 450 m². 

Clause 7.1 Acid sulfate soils

29. The site is identified as potentially containing Class 5 soils on the Acid Sulfate Soil Map. What is proposed is unlikely to lower the water table by more than one metre. An Acid Sulfate Soils Management Plan is not required as the works are unlikely to involve the disturbance of more than one tonne of soil and are unlikely to lower the water table. 

Clause 7.2 Earthworks

30. The Development Application proposes only stormwater works. Before granting consent for earthworks or for development including conciliary earthworks, the consent authority must consider the matters listed in cl 7.2(3) of LMLEP 2014.  

31.  I am satisfied the matters to be considered under cl 7.2(3) have been considered by the parties and suitable conditions have been agreed. 

Clause 7.5 Terrestrial Biodiversity  

32. The site is not identified as biodiversity on the Terrestrial Biodiversity Map.

Clause 7.7 Development on sensitive Aboriginal landscape areas

33. The site has not been identified on the Sensitive Aboriginal Landscape Area Map.  

Clause 7.21 Essential Services 

34. The site is situated in an established residential area. I am satisfied that essential services are available to the new lots arising from the subdivision. 

Public Notification 

35.  The Development Application was notified by Council as required from 21 February 2022 to 14 March 2022. No submissions were received.

Owner’s Consent  

36. The Development Application was made with the written consent of the registered owner of the subject site. 

Note

37. The Court notes:

1. That the Respondent as the relevant consent authority has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant's amending Development Application DA/3319/2021 in accordance with the plans and documents listed below:

Document	Author	Date
Biodiversity Development Assessment Report	Land Eco	1/12/2022
Arboricultural Impact Assessment	Treehaven Environscapes	28/02/2022

2. The amended plans and documents referred to in par 37(1) above were filed with the Court on 21 December 2023.

Orders

38. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application number DA/3319/2021, seeking consent for one into three lot Torrens title subdivision at Lot 76 in Deposited Plan 12507, known as 2 Ilford Avenue, Buttaba, subject to the conditions of consent at Annexure 'A'.

P Adam

Acting Commissioner of the Court

Annexure A

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Decision last updated: 18 January 2024