Soosi Pty Ltd v Shoalhaven City Council

[2025] NSWLEC 1050

Land and Environment Court

New South Wales

Medium Neutral Citation:

Soosi Pty Ltd v Shoalhaven City Council [2025] NSWLEC 1050

Hearing dates:

Conciliation Conference held 17 January 2025

Date of orders:

30 January 2025

Decision date:

30 January 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2024/1113 as amended for the two (2) lot Torrens title subdivision and tree removal at 89 Boorawine Terrace, Callala Bay NSW 2540 is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – Torrens title subdivision – tree removal - conciliation conference – agreement between the parties – orders

Legislation Cited:

Coastal Management Act 2016

Contaminated Land Management Act 1997

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Shoalhaven Local Environmental Plan 2014, cl 4.1, 7.1, 7.2, 7.11, 7.20

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.98, 2.120, 2.122

Texts Cited:

Shoalhaven City Council Community Participation Plan dated October 2019

Category:

Principal judgment

Parties:

Soosi Pty Ltd ACN 673 725 141 (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
G Pavlis (Solicitor) (Applicant)
S Neilson (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Shoalhaven City Council (Respondent)

File Number(s):

2024/285805

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA24/1113 seeking consent for the two (2) lot Torrens Title subdivision (Proposed Development) at 89 Boorawine Terrace, Callala Bay NSW 2540 legally described as Lot 7 in DP 509441 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 January 2025. I presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

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 to be various terms of the Shoalhaven Local Environmental Plan 2014 (SLEP) and the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

7. The Applicant is the registered owner of the Site (see Tab 9 of the Class 1 Application) and the DA was lodged with the Respondent on 5 April 2024 with the consent of the Applicant.

8. The DA was notified for the period between 2 and 16 May 2024. No submissions were received.

9. On 5 August 2024, the Applicant commenced these Class 1 proceedings against the Respondent’s deemed refusal of the DA. On 14 August 2024, the Respondent issued a Notice of Determination approving the DA. Pursuant to s 8.13 of the EPA Act the notice of determination dated 14 August 2024 is not operative as proceedings were on foot appealing the deemed refusal of the development application as at 5 August 2024. 

10. Due to an oversight in the DA, the Applicant seeks to amend the DA to include the removal of six trees and the retention of 5 trees as indicated on the Site Plan Issue A, dated 16 January 2024 prepared by New Way Surveying . The Court’s determination to uphold the appeal and granting of consent will override the Notice of Determination dated 14 August 2024.

11. The Site is zoned R2 Low Density Residential under the SLEP. The Proposed Development is permissible with consent in the R2 zone.

12. The Proposed Development proposes that the six trees to be removed will be cut at the stump of the tree. The tree stump will then be grinded to ground level. Therefore, no earthworks are proposed as the tree roots and stumps will not have to be dug out of the ground. Accordingly, consent is not sought for earthworks pursuant to cl 7.2 of the SLEP. This method of tree removal also means that the provisions of cl 7.1 of the SLEP are not invoked, notwithstanding that the Site is subject to Class 5 acid sulphate soils on the Acid Sulphate Soils Map made under cl 7.1 of the SLEP.

13. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to a development if it has not considered whether a site is contaminated, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. Having considered the terms of s 4.6 of the Resilience and Hazards SEPP, the Court can be satisfied that consent can be granted as follows:

1. the Proposed Development does not require any earthworks or construction works due to the nature of tree removal;

2. the Site is not:

1. land that is significantly contaminated land within the meaning of the Contaminated Land Management Act 1997;

2. subject to a management order within the meaning of the Contaminated Land Management Act 1997;

3. subject to an approved voluntary management proposal within the meaning of the Contaminated Land Management Act 1997;

4. subject to an ongoing maintenance order within the meaning of the Contaminated Land Management Act 1997; and

5. subject of a site audit statement within the meaning of the Contaminated Land Management Act 1997.

3. the Site has a long history of being used for residential purposes;

4. the Proposed Development does not change the use of the Site specified in s 4.6(4) of the Resilience and Hazards SEPP which requires a report specifying the findings of a preliminary investigation of the Site; and

5. various conditions of consent have been agreed to address any potential contamination issues, and risks associated with the potential presence of any contamination on the Site.

14. A minimum lot size development standard of 500m² applies to the Site pursuant to cl 4.1 of the SLEP. I am satisfied that the Proposed Development complies with this development standard because consent is sought to sub-divide the Site into two lots each greater than 500m² with one lot being 562.1m² and the other lot being 600m².

15. Clause 7.11 of the SLEP requires that a consent authority must not grant development consent to a development unless the consent authority is satisfied that services that are essential for the development are available or that adequate arrangement have been made to make them available when required. The Proposed Development does not require adequate arrangements to be made for the supply of water, supply of electricity, disposal and management of sewage, and suitable vehicular access because the Proposed Development relates to a subdivision and tree removal with no proposed construction works. In any event, there is an existing residential dwelling on the Site which benefits from the specified essential services.

16. The Clauses Map referred to in cl 7.20 of the SLEP identifies that the Site is mapped as being within the Jervis Bay Region. Whilst cl 7.20 of the SLEP applies to the land, the provisions of clause 7.20 of the SLEP otherwise do not apply to the Proposed Development because:

1. Subclause (3) does not apply as the site is not within a coastal sand dune area, on a rocky headland or on a flat, well-drained area along a major creek line.

2. Subclause (4) does not apply as the development is not in the vicinity of the Point Perpendicular lighthouse group.

3. Subclause (5) does not apply as the development is not in the vicinity of the Huskisson Tapalla Point rock platform.

4. Subclause (6) does not apply as the development is not located on land to which this clause applies and identified as “Biodiversity—habitat corridor” on the Terrestrial Biodiversity Map.

5. Subclause (7) does not apply as the proposal is not for a public utility undertaking, or a public or private access road through land identified as “Biodiversity—habitat corridor” on the Terrestrial Biodiversity Map.

6. Subclause (8) does not apply as the development is not on land to which this clause applies and specifically identified as “Disturbed habitat and vegetation Cl 7.20” on the Terrestrial Biodiversity Map.

7. Subclause (9) does not apply as the proposal is not for tourist and visitor accommodation or ancillary facilities.

17. Chapter 2 of the Resilience and Hazard SEPP seeks to promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016 and applies to land within the coastal zone. The Site is located within the Coastal Environment Area and within the Coastal Use Area on the Coastal Wetlands and Littoral Rainforests Area Map and the Court must be satisfied in relation to the terms of ss 2.10 and 2.11 of the Resilience and Hazards SEPP.

18. I have achieved the requisite state of satisfaction because the Proposed Development:

1. does not involve earthworks and the Site is located on an established residential site which is significantly separated from waterways and does not involve significant alterations of any native vegetation or ground coverings, it is not likely that the existing biophysical, hydrological, and ecological environment or natural coastal processes will be impacted;

2. does not involve works to the waterway or banks and thus, is not expected to detrimentally impact marine vegetation, native vegetation, flora, fauna;

3. will not impede access to existing open space or the surf zone;

4. will not impact access to coastal areas.

19. Section 2.12 of the Resilience and Hazard SEPP does not apply to the Site as the Site is not located within the Coastal Zone.

20. The Site is in the vicinity of electricity infrastructure that would require concurrence of the electricity supply authority pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). However, the Proposed Development does not involve construction work as it relates to subdivision and tree removal and will not affect electricity transmission or distribution networks.

21. The Site is not in the vicinity of rail infrastructure, therefore s 2.98, Transport and Infrastructure SEPP does not apply.

22. The Site is not located within proximity to a classified road and as a result it is not necessary to consider the provisions of s 2.120 of the Transport and Infrastructure SEPP that requires a consent authority to consider the impact of arterial roads on buildings used for residential purposes.

23. The Proposed Development is not identified as traffic generating development by Sch 3 of the Transport and Infrastructure SEPP. Accordingly, the proposal is not required to be referred to the Roads and Maritime Services for comment: s 2.122, Transport and Infrastructure SEPP.

24. The Proposed Development does not require re-notification as the relevant officer of the Respondent has formed the opinion that the environmental impact of the amendments will be the same or lesser than the DA and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner described in the relevant section of the Shoalhaven City Council Community Participation Plan dated October 2019.

25. For the reasons set out above, 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.

26. 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.

Notations

27. The Court notes that Shoalhaven City Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application DA2024/1113 to incorporate the documents listed below:

No.	Document	Prepared by	Date
1.	Amended Development Application Form	Applicant	-
2.	Revised Statement of Environmental Effects	Infinite Design and Building Consultancy	Dec 2024

Orders

28. The Court orders:

1. The appeal is upheld.

2. Development Application DA2024/1113 as amended for the two (2) lot Torrens title subdivision and tree removal at 89 Boorawine Terrace, Callala Bay NSW 2540 is determined by a grant of consent subject to conditions contained in Annexure A.

E Espinosa

Commissioner of the Court 

Annexure A

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Decision last updated: 30 January 2025