Tactica Planning and Development Pty Ltd trading as Tactica Planning & Development v Tweed Shire Council

[2022] NSWLEC 1538

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tactica Planning and Development Pty Ltd trading as Tactica Planning & Development v Tweed Shire Council [2022] NSWLEC 1538

Hearing dates:

Conciliation conference 2 September 2022

Date of orders:

04 October 2022

Decision date:

04 October 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) Development Application No. DA21/0038 seeking consent for the subdivision of Lot 12 DP 1003644 to create five (5) Torrens title lots, removal of vegetation, site grading and associated infrastructure works and construction of an access road through Lot 28 DP 250909, is determined by way of the grant of consent subject to the conditions in Annexure A.

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

Catchwords:

DEVELOPMENT APPLICATION – subdivision – amended plans and further information – conciliation – agreement between the parties – orders made

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s100B

State Environmental Planning Policy No 55—Remediation of Land

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

Tweed Local Environmental Plan 2014, cll 2.6, 4.1, 7.1, 7.6, 7.10

Category:

Principal judgment

Parties:

Tactica Planning and Development Pty Ltd Trading as Tactica Planning and Development (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:
J Bristow (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Finn Roach Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/312207

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Tweed Shire Council of development application DA 21/0038. The development application, as amended, seeks consent for the Torrens title subdivision of Lot 12 DP 1003644 into five (5) Torrens title lots, removal of vegetation, site grading and associated infrastructure works and construction of an access road through Lot 28 DP 250909. The development is proposed at Terranora Road, Banora Point.

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. The appeal was initially listed for a conciliation conference on 1 April 2022 in accordance with s 34 of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached at the conciliation, which was terminated, and the matter was listed for hearing. Following the conciliation discussions continued between the parties. The discussions led to the production of amended plans and documentation which assisted an agreement in principle being reached between the parties. The amended plans have been lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). At the request of the parties the matter was listed for a further conciliation conference on 2 September 2022. I presided at the further conciliation conference. A signed agreement pursuant to s 34(3) of the LEC Act was filed with the Court on 9 September 2022. The agreement is that the appeal be upheld, and the development application be approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site in accordance with cl 49 of the EPA Regulation. The development application has been amended to include works on Lot 28 DP 250909, land which is owned by the Respondent. Consent to the development application was given by the Respondent in writing on 8 February 2022.

2. The development application is integrated development within the meaning of s 4.46 of the EPA Act, as a bush fire safety authority is required pursuant to s 100B of the Rural Fires Act 1997. General terms of approval were issued by the NSW Rural Fire Service on 25 July 2022 and are incorporated in the conditions of consent.

3. A Biodiversity Development Assessment Report (BDAR) is required under the Biodiversity Conservation Act 2016 (BC Act) if the development is likely to significantly affect threatened species. A BDAR has been prepared by GeoLink on behalf of the Applicant which confirms that the development is not likely to significantly affect threatened species confirming that: firstly, native vegetation clearing will not exceed the clearing thresholds in the Biodiversity Offsets Scheme in the BC Act; secondly, that habitat for threatened species or communities would not be significantly affected by the proposal.

4. The development application in its original and amended forms has been notified by the Respondent. No submissions were received by the Respondent.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land to the new instrument. In determining the development application, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. The updated Statement of Environmental Effects dated 9 June 2022 identifies that the subject site is not contaminated. Further, the Respondent undertook an assessment of historical aerial images of the site and previous activities and concluded that contamination of the site was unlikely and further investigation was not required. In determining the development application, I have considered whether the land is contaminated, and I accept that the site will be suitable for the proposed development.

6. The Tweed Local Environmental Plan 2014 (LEP 2014) applies to the land. Development for the purpose of subdivisions is permissible with consent on land: cl 2.6 of LEP 2014.

7. Lot 12 DP 1003644 is subject to a minimum lot size of 450m² pursuant to the Lot Size Map referred to in clause 4.1(2) of LEP 2014. The proposed lots are greater than 450m² in area, compliant with the development standard.

8. Pursuant to cl 7.1 of LEP 2014 the site is mapped as Class 5 acid sulfate soils, however the works for which consent is sought are not below 5m AHD.

9. I am satisfied the essential services for the development will be made available when required pursuant to 7.10 of LEP 2014. Specifically:

1. The application was referred to Essential Energy and no concerns were raised, subject to a further application for the supply of electricity at the time of subdivision.

2. The application involves connection to water supply located in Curtawilla Street, via an extension to the water main into the site.

3. The application includes a sewer easement, and connection to the internal sewerage reticulation network located in Curtawilla Street.

4. Stormwater drainage infrastructure works are proposed as part of the development application, and discharge will be directed into the adjoining land owned by Council (for which owners’ consent is provided) containing an existing drainage channel.

5. Suitable vehicular access will be made available as a result of the proposed extension of Curtawilla Street.

10. Pursuant to cl 7.6 of LEP 2014, by reference to the Stormwater Management Report which forms part of the development application, I am satisfied that the development is designed to maximise the use of water permeable surfaces and avoids any significant adverse impacts of stormwater runoff on adjoining properties and native bushland. The development meets the requirements of the clause.

5. 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.

6. 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.

7. The Court notes that:

1. Tweed Shire Council, as the relevant consent authority has agreed, pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to amend Development Application No. DA21/0038 in accordance with the amended plans and documents listed below:

Document	Prepared by	Date of Issue
Engineering Concept - Roadworks Layout Plan Drg No 19004-SK1 Rev F	Sayoung Enterprises Civil engineering Design & Drafting Services	12 July 2022
Engineering Concept - Road Longitudinal Section Drg No 19004-SK2 Rev F	Sayoung Enterprises Civil engineering Design & Drafting Services	12 July 2022
Engineering Concept - Road Cross Sections Drg No 19004-SK3 Rev F	Sayoung Enterprises Civil engineering Design & Drafting Services	12 July 2022
Engineering Concept - Services Layout Plan Drg No 19004-SK4 Rev F	Sayoung Enterprises Civil engineering Design & Drafting Services	12 July 2022
Proposed Road Reserve Extension Plan Drg No 19004-SK5 Rev F	Sayoung Enterprises Civil engineering Design & Drafting Services	12 July 2022
Engineering Concept - Earthworks Layout Plan Drg No 19004-SK6 Rev F	Sayoung Enterprises Civil engineering Design & Drafting Services	12 July 2022
Sewerage Longitudinal Section Drg No 19004-SK8 Rev F	Sayoung Enterprises Civil engineering Design & Drafting Services	12 July 2022
Statement of Environmental Effects - Appeals Update Ref JOB #T2095	Tactica Planning & Development	9 June 2022
Biodiversity Assessment Report Ref 4163-1010 Rev 3	Geolink	8 July 2022
Bushfire Risk Assessment Ref 2008FOR1078 - Version 2.1	Bushfire Risk - M Jackson	13 July 2022
Draft Plan of Subdivision	7 September 2022

2. The amended development application documents listed above were lodged on the NSW planning portal on 18 July 2022, except the Statement of Environmental Effects which was uploaded on 23 June 2022, and the Draft Plan of Subdivision which was uploaded on 8 September 2022.

3. The Applicant filed the amended development application, except for the Draft Plan of Subdivision with the Court on 31 August 2022. The Draft Plan of Subdivision to be filed with the Court on 8 September 2022.

8. The Court orders that:

1. The appeal is upheld;

2. Development Application No. DA21/0038 seeking consent for the subdivision of Lot 12 DP 1003644 to create five (5) Torrens title lots, removal of vegetation, site grading and associated infrastructure works and construction of an access road through Lot 28 DP 250909, is determined by way of the grant of consent subject to the conditions in Annexure A.

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

.…………………………

D M Dickson

Commissioner of the Court

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Annexure A 

Decision last updated: 04 October 2022