Surf All Day Pty Ltd ACN 627 817 181 v Eurobodalla Shire Council

[2024] NSWLEC 1366

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Surf All Day Pty Ltd ACN 627 817 181 v Eurobodalla Shire Council [2024] NSWLEC 1366

Hearing dates:

Conciliation conference on 21 June 2024

Date of orders:

02 July 2024

Decision date:

02 July 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1)   The Applicant is granted leave to file the further and amended material specified in Annexure A.

(2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to DA0619/22 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3)   The appeal is upheld.

(4)   Development Application No DA0619/22 (as amended) for development described as a two lot subdivision of an existing lot and the construction of multi dwelling housing comprising 5 single storey dwellings and earthworks on land legally described as Lot 82 DP 614216 known as 54 Hawdon Street, Moruya, is determined by the grant of consent, subject to the condition of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Eurobodalla Local Environmental Plan 2022, cll 2.6, 5.21, 6.9

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

Category:

Principal judgment

Parties:

Surf All Day Pty Ltd ACN 627 817 181 (Applicant)
Eurobodalla Shire Council (Respondent)

Representation:

Counsel:
R White (Applicant)
D Gunter (Solicitor) (Respondent)

Solicitors:
Kamy Saeedi Law (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/75396

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of development application number DA0619/22 (DA) with respect to land legally described as Lot 82, DP 614216 and known as 54 Hawdon Street, Moruya (site). The DA sought consent for a two-lot subdivision to create a residential lot for the existing dwelling house on the site and a larger lot for the development of multi dwelling housing comprising 5 single storey dwellings.

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 20 June 2024. I presided over the conciliation conference. Prior to the conference the parties had filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision would have the Court upholding the appeal, subject to amended plans, and granting consent to the DA subject to agreed conditions.

3. 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.

Jurisdiction

4. The parties’ decision involves the Court exercising the consent authority function, under s 4.16 of the EPA Act, to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied in a jurisdictional statement, provided to the Court on 20 June 2024. In regard to jurisdiction, and having regard to this statement, I find as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021

5. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that the site has historically been used for residential or rural residential purposes and that the DA was accompanied by a Preliminary Site Investigation which concluded that the site is not contaminated and is suitable for the proposed development. These requirements of SEPP Resilience and Hazards have been met.

Eurobodalla Local Environmental Plan 2022

6. I note the proposal is for permissible development. Multi dwelling housing is permissible with consent in the applicable R2 Low Density Residential zone and subdivision is permissible under cl 2.6 of the Eurobodalla Local Environmental Plan 2022 (ELEP).

7. I accept the advice of the parties that the proposal does not breach any development standards under ELEP.

8. The respondent considers the site to be within the flood planning area and therefore cl 5.21 applies. Clause 5.21(3) lists certain matters for consideration. The parties advise that this consideration has been undertaken (Jurisdictional Statement par 30). Clause 5.21(2) provides that development consent must not be granted unless the consent authority is satisfied in regard to specified matters. The DA was accompanied by a flood study carried out by Rienco Consulting and dated 23 October 2023 and a stormwater management plan dated 23 October 2023, which I am advised, together, position the Council to be directly satisfied in regard to each of the nominated matters at cl 5.21(2)(a)-(e). On the basis of this advice I too am satisfied in regard to these matters.

9. In regard to stormwater management, development consent must not be granted unless the consent authority is satisfied in relation to the matters listed at cl 6.9(3)(a)-(c). The jurisdictional statement directly indicates that Council is satisfied in relation to each of these matters. The parties advise that this is because of the results of the above referenced flood study, stormwater management plan and the conditions of consent. In a related matter, the parties also advise of the applicant’s offer to enter into a planning agreement with the respondent, the details of which were placed on public exhibition and concerning which there were no objecting submissions. This agreement, now accepted by Council and accommodated in proposed consent conditions, allows for the resolution of certain downstream and offsite stormwater management requirements. In the circumstances, I too am satisfied in regard to each of the listed matters at cl 6.9(3)(a)-(c), subject to the agreed conditions of consent.

Other matters

10. The parties advise the proposal was notified in accordance with requirements and a single objecting submission was received. The submission has been provided to me and the parties have explained how it has been considered.

Conclusion

11. Based on the above details, 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. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

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

13. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notification

14. The Court notes that the Respondent, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA0619/22 to rely on the documents and further information specified in Annexure A.

Orders

15. The Court orders:

1. The Applicant is granted leave to file the further and amended material specified in Annexure A.

2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to DA0619/22 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application No DA0619/22 (as amended) for development described as a two lot subdivision of an existing lot and the construction of multi dwelling housing comprising 5 single storey dwellings and earthworks on land legally described as Lot 82 DP 614216 known as 54 Hawdon Street, Moruya, is determined by the grant of consent, subject to the condition of consent in Annexure B.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A

Annexure B

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Amendments

02 July 2024 - Pursuant to UCPR r 36.17, the law firm name for the Applicant's solicitor has been corrected.

Decision last updated: 02 July 2024