Taylor v Wingecarribee Shire Council

[2024] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taylor v Wingecarribee Shire Council [2024] NSWLEC 1539

Hearing dates:

Conciliation conference on 8 August 2024

Date of orders:

03 September 2024

Decision date:

03 September 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.
(2) Development Application No. 23/0764 for construction of a new dwelling house at Lot 1 in Deposited Plan 324471 known as Wingecarribee Street, Berrima NSW 2577 is determined by the grant of development consent subject to conditions of consent in Annexure B to this judgment.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7
Land and Environment Court Act 1979, s 34, 34AA
Rural Fires Act 1997

Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, s 6.61
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4
Wingecarribee Local Environmental Plan 2010, cll 5.10, 5.21, 6.2, 7.5

Texts Cited:

NSW Rural Fire Service, Planning for Bushfire Protection, November 2019

Water NSW, Neutral of Beneficial Effect on Water Quality Assessment Guideline, October 2022

Category:

Principal judgment

Parties:

William Arnold Taylor (First Applicant)
Diana Joan Taylor (Second Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor)(Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
Piper Alderman (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/458128

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by William Arnold Taylor and Diana Joan Taylor (the Applicants) against the refusal of Development Application No. 23/0764 by Wingecarribee Shire Council (the Respondent) on 5 October 2023.

2. The Development Application seeks consent for the construction of a new dwelling house at Lot 1 in Deposited Plan 324471, located in Wingecarribee Street, Berrima NSW 2577 (the Land).

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (the LEC Act). This was held on 8 August 2024.

4. At the conciliation conference, the parties reached an in principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application, subject to agreed outcomes and agreed conditions.

5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The amendments, which were made in response to concerns raised by the Respondent and objectors to the proposal, result in fewer environmental impacts from the proposed development.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent 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). In reaching that state of satisfaction, I note the following:

1. The Land is zoned E1 under the Wingecarribee Local Environmental Plan 2010 (WLEP 2010) and development for the purposes of medium density housing is permissible, with development consent, in the Zone. As required by the WLEP 2010, regard has been given to the objectives of the zone in determining the Development Application.

2. Clause 5.10 of WLEP 2010 sets out matters the consent authority must have regard to before granting development consent for the construction of a building within a heritage conservation area. The Land falls within the Berrima Heritage Conservation Area (Berrima HCA). The parties agree that the Development Application, in its amended format, is sympathetic with the special values of the Berrima HCA and will not have an adverse impact on nearby listed heritage items. The Court is satisfied that the considerations under cl 5.10 of the WLEP 2010 have been adequately considered.

3. Clause 5.21 of the WLEP 2010 provides that a consent authority must not grant development consent on the Land unless it is satisfied that the development achieves the matters set out in cll 5.21(2) and 5.21(3). The Applicants has prepared an updated Flood Risk Assessment that deals with habitable floor levels, safe evacuation routes and flood sensors and alarms. The parties also agree that the proposed development will not impact on flood behaviour in the locality. The parties are satisfied, as is the Court, that the relevant flood matters have been addressed.

4. Clause 7.3 of the WLEP 2010 requires certain matters to be considered by the consent authority before granting development consent. The Development Application proposes minimal earthworks and will be elevated above ground level. The matters listed under cl 7.3 of the WLEP 2010, with respect to earthworks, have been considered.

5. Clause 7.5 of the WLEP 2010 - Natural Resources Sensitivity – Water is applicable as the Land is located within 50m of the Wingecarribee River which is categorised as a Category 1 stream under the WLEP 2010. The parties have considered the matters set out in cl 7.5(3) and agree that the Development Application will not have an adverse impact on the Wingecarribee River, including its flow and the stability of its bed, shore and banks due to the small building foot print proposed. The dwelling is not expected to interrupt the flow of the Wingecarribee River or otherwise cause any adverse impacts. As a result, the parties agree that the proposal is consistent with the requirements of cl 7.5(3) and the Court is satisfied that the required considerations have been undertaken.

6. The Development Application was placed on exhibition between 3 February and 17 February 2023. Two submissions were received which raised concerns about impact on visual amenity, impact on bushland as the Land is in a flood zone and use of certain materials. The submissions have been considered by the parties and relevant experts and consider that the amended plans are responsive to the submission.

7. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Rural Fires Act 1997

1. Pursuant to s 4.14 of the EPA Act, the Court must not grant development consent for the carrying out of development on bushfire prone land unless it is satisfied that the development conforms to the specifications and requirements of the NSW Rural Fire Service (NSW RFS). The Land is located within a bushfire ‘Vegetation Buffer Zone’. The Applicants prepared a Bushfire Assessment Report with the original development application which confirms that the proposed development can be built in accordance with Planning for Bushfire Protection 2019, BAL 40 certification requirements and relevant Australian Standards.

2. On 15 February 2023, the Respondent referred the Development Application to NSW RFS. NSW RFS provided its referral response to the original development application and conditions of consent to ensure that the proposed development is constructed in accordance with the above-mentioned specifications and requirements. The parties have also agreed on those conditions of consent which ensure that the Development Application will be carried out in accordance with the NSWRFS’ specifications and requirements.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Land as it is located within the Sydney Drinking Water Catchment. Pursuant to s 6.61, development consent must not be granted to development relating to any part of the Sydney Drinking Water Catchment unless the consent authority is satisfied the carrying out of the development would have a neutral or beneficial effect (NorBE) on water quality.

2. The Applicants prepared a Water Cycle Management Study and Stormwater Management Plan prepared by Martens and Associates. In the Water Cycle Management Study, the proposed development was assessed against the NorBE criteria set out in the Neutral of Beneficial Effect on Water Quality Assessment Guideline 2022. The findings of the Water Cycle Management Study and Stormwater Management Plan Report are that the proposed development will achieve the NorBE criteria in terms of impact on water quality. The parties are satisfied that the proposed development will have NorBE impact on the water quality as required by s 6.61.

3. Chapter 2 of the Biodiversity and Conservation SEPP also applies to the Land. The Land is not mapped as ‘biodiversity values’ and no significant vegetation is proposed for removal in the Development Application. The Court can be satisfied that the parties have considered the requirements of Ch 2 of the Biodiversity and Conservation SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires the consent authority to consider whether the land is contaminated prior to the carrying out of any development on the Land, and to be satisfied that the land is suitable for the proposed use. The Land has historically been well maintained and is in a very small undeveloped portion of a historical lot containing a bakery and hotel, all of which are low intensity uses. As stated in the Respondent’s Planning Assessment Report of the original development application, the Land has not supported nor has it been used for any significant development that would indicate historical contamination issues.

9. 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’ agreement.

10. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court notes that:

1. The Respondent as the relevant consent authority has agreed, under section 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the Applicants amending Development Application No. 23/0764 to rely upon the amended plans outlined in Annexure A to this judgment.

Orders

12. The Court orders:

1. The appeal is upheld.

2. Development Application No. 23/0764 for construction of a new dwelling house at Lot 1 in Deposited Plan 324471 known as Wingecarribee Street, Berrima NSW 2577 is determined by the grant of development consent subject to conditions of consent in Annexure B to this judgment.

Stuart Harding

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 03 September 2024