Southern Highlands Developments Pty Ltd v Wingecarribee Shire Council

[2024] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation:

Southern Highlands Developments Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1095

Hearing dates:

Conciliation conference on 20 and 21 February 2024

Date of orders:

7 March 2024

Decision date:

07 March 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

(2) The appeal is upheld.

(3) Development application number DA2023/1247, as amended, for construction of a new four (4) bedroom attached dual occupancy with attached double garage, alterations and additions to the existing dwelling (cottage) and new detached double garage and strata subdivision into two strata lots at Lot 1 in Deposited Plan 741837, commonly known as 4 Myrtle Street, Bowral 2576, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – dual occupancy – heritage – conciliation conference – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.61, 6.63, 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 4.1, 4.2E, 4.2F, 5.10, 7.1, 7.3 and Sch 5

Category:

Principal judgment

Parties:

Southern Highlands Developments Pty Ltd (Applicant)
Wingecarribbee Shire Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2023/225012

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 deemed refusal of development application DA2023/1247. The development application seeks development consent for the construction of an attached dual occupancy with attached double garage, alterations and additions to the existing dwelling (cottage) and new detached double garage and strata subdivision into two strata lots (DA) at Lot 1 in Deposited Plan 741837 known as 4 Myrtle Street, Bowral 2576 (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 DA2023/1247 in accordance with the documents listed at [22] (amended application). The main amendments can be summarised as follows:

• Change from Torrens title subdivision to strata subdivision;

• Detailed design changes in relation to heritage;

• Changes to the front landscaped area.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 and 21 February 2024. I have presided over the conciliation conference.

4. 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 for the amended application and granting development consent to the amended application subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

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

Jurisdictional Prerequisites

8. 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.

9. I am satisfied that owners consent accompanied the development application.

10. The development application was lodged to the respondent on 9 May 2023. The respondent notified the development application between 15 May and 29 May 2023. Three submissions were received. The written concerns raised are summarised below:

• Heritage impacts including adjoining properties;

• Compatibility with the heritage item and local area;

• Scale of the proposal;

• Appropriateness of large dual occupancy developments for heritage items and heritage conservation areas;

• Consistency of lot size; and

• Information on the history of Alf Stephens & Sons.

11. As the parties have entered into an agreement, the parties have considered the concerns raised.

Wingecarribee Local Environmental Plan 2010

12. The site is zoned R3 Medium Density Residential under the Wingecarribee Local Environmental Plan 2010 (WLEP). The proposed development for a dual occupancy is permitted with consent and I have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable WLEP provisions are met:

1. Clause 4.1 minimum subdivision lot size requires a minimum lot size of 700m². The survey plan prepared by RHCO Surveying and Development Consultants (survey plan) dated 25 March 2021 details the lot size as 1624m².

2. Clause 4.2E requires a minimum lot size of 1,000m². The site complies, at 1624m².

3. Clause 4.2F requires a minimum subdivision lot size for dual occupancies on R3 zoned land. Each lot must be 50% of the minimum lot size, a minimum of 600m², not result in more than one dwelling per lot and each lot will be serviced by water and sewerage. On the basis of the survey plan, architectural drawings at [22] and the conditions of consent at Annexure A, I am satisfied the provisions of Clause 4.2F have been satisfied.

4. Clause 5.10 heritage conservation applies to the site. In accordance with sch 5, the site is mapped within the Bowral Heritage Conservation Area. The amended application has been considered by the parties’ heritage experts with further details included as conditions of consent at Annexure A. Within the heritage joint expert report, the heritage experts have agreed that the revised design responds appropriately to the existing dwelling and the Bowral Heritage Conservation Area; and will not adversely impact the heritage significance of the area.

5. Clause 7.1 applies to the amended application and provides further minimum lot size requirements that are consistent with those considered above regarding cl 4.1.

6. Clause 7.3 earthworks applies to the amended application. The amended application is accompanied by stormwater management plans, architectural plans and a waste management plan which address the provisions. Appropriate conditions of consent are also included within Annexure A.

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

14. The development application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead.

15. The parties agree and I am satisfied that the amended application is accompanied by amended BASIX Certificates (1353503S_04 and A479655_04) that meet the provisions of SEPP BASIX.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the amended application.

17. Chapter 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.61, 6.63 and 6.64 apply as the site is located within the Sydney Drinking Water Catchment. I have considered the Statement of Environmental Effects prepared by The Architecture Company Pty Ltd dated 17 March 2023 (SEE), stormwater management plans, stormwater joint expert report, the Neutral or Beneficial Effect Assessment and Summary (NorBE documentation), conditions of consent at Attachment A and detailed jurisdictional statement. The parties agree and I accept that the amended application satisfies the provisions within Ch 6. On this basis, I am satisfied that concurrence is not required in accordance with s 6.64(4).

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application is accompanied by an SEE which states that the site has a history of residential use with no known history of contamination activities occurring on site. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Conclusion

19. 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.

20. 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.

21. 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.

22. The Court notes:

1. That the respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA2023/1247 in accordance with the documents listed below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Site Analysis Plan	A02	D	20/02/2024	the architecture company pty ltd
Lower ground floor plan	A03	J	21/02/2024	the architecture company pty ltd
Ground floor plan	A04	K	21/02/2024	the architecture company pty ltd
Upper ground floor plan	A05	K	21/02/2024	the architecture company pty ltd
Roof plan	A06	J	21/02/2024	the architecture company pty ltd
Elevations/sections 01	A07	I	21/02/2024	the architecture company pty ltd
Elevations/sections 02	A08	J	21/02/2024	the architecture company pty ltd
BASIX Commitments	A09	D	22/02/204	the architecture company pty ltd
Colour scheme site data plans	A10	C	19/02/2024	the architecture company pty ltd
Fence details	A12	A	07/02/2024	the architecture company pty ltd
Strata title plan	A13	B	07/02/2024	the architecture company pty ltd
Rear fence details	A14	B	20/02/2024	the architecture company pty ltd
Amended Stormwater Plans
Standard Notes and Drawing List	SW1	B	02.24	Woolacotts Consulting Engineers
Stormwater Management Plan – Ground Floor	SW2	C	02.24	Woolacotts Consulting Engineers
Stormwater Management Plan – Lower Ground Floor	SW3	D	14.02.24	Woolacotts Consulting Engineers
Stormwater Management Plan – Downstream	SW4	A	02.24	Woolacotts Consulting Engineers
Stormwater Details – Sheet 1	SD1	B	02.24	Woolacotts Consulting Engineers
Stormwater Details – Sheet 2	SD2	A	12/12/23	Woolacotts Consulting Engineers
Lot A Catchment Plans	CP1	B	02.24	Woolacotts Consulting Engineers
Lot B Catchment Plans	CP2	B	02.24	Woolacotts Consulting Engineers
Lot A MUSIC Catchment Plan	MP1	B	02.24	Woolacotts Consulting Engineers
Lot B MUSIC Catchment Plan	MP2	B	02.24	Woolacotts Consulting Engineers
Erosion & Sediment Control Plan and Details	ES1	B	02.24	Woolacotts Consulting Engineers
Amended Landscape Plans
Landscape Plan – Lower Ground Floor Plan	22-4588 L01	B	19.02.2024	Zenith Landscape Designs
Landscape Plan – Ground Floor Plan	22-4588 L02	B	19.02.2024	Zenith Landscape Designs
Landscape Plan – Upper Ground Floor Plan	22-4588 L03	B	19.02.2024	Zenith Landscape Designs
Landscape Plan	22-4588 L04	B	19.02.2024	Zenith Landscape Designs
Reports
Amended Arboricultural Impact Assessment prepared by Arboriculture Consultancy Australia dated 14 February 2024
BASIX Certificate Lot A 4 Myrtle St Bowral, Certificate No. 1353503S_04, prepared by Gradwell Consulting dated 22 February 2024
BASIX Certificate Lot B 4 Myrtle St Bowral, Certificate No. A479655_04, prepared by Gradwell Consulting dated 22 February 2024

Orders:

23. The Court orders:

1. The applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

2. The appeal is upheld.

3. Development application number DA2023/1247, as amended, for construction of a new four (4) bedroom attached dual occupancy with attached double garage, alterations and additions to the existing dwelling (cottage) and new detached double garage and strata subdivision into two strata lots at Lot 1 in Deposited Plan 741837, commonly known as 4 Myrtle Street, Bowral 2576, is determined by the grant of development consent subject to the conditions in Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 07 March 2024