The Trustee for Landen Dev No 14 Unit Trust v Lake Macquarie City Council

[2025] NSWLEC 1127

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for Landen Dev No 14 Unit Trust v Lake Macquarie City Council [2025] NSWLEC 1127

Hearing dates:

Conciliation conference 27 June 2024, 11 February 2025

Date of orders:

06 March 2025

Decision date:

06 March 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application DA/1567/2023 seeking consent for Torrens Title subdivision (70 residential lots and 1 conservation lot), demolition of existing structures, road construction and civil works and 21 Colleen Lane, Wyee (Lot 472 DP 755242) is approved subject to the conditions set out in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPLICATION: demolition and residential subdivision, civil works and road construction – conciliation conference – amended plans and additional information – agreement between the parties – orders made.

Legislation Cited:

Biodiversity Act 2016, ss 6.15, 7.2, 7.3, 7.7, 7.16, Pt 7

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47, 8.7,

Land and Environment Court Act 1979, s 34

Roads Act 1993, s 152I

Rural Fires Act 1997, s 100B

Water Management Act 2000, s 91

Biodiversity Conservation Regulation 2017, ss 6.7, 7.2

Environmental Planning and Assessment Regulation, s 38

Lake Macquarie Local Environmental Plan 2014, cll 4.1, 4.1B, 4.1E, 5.21, 6.1, 6.2, 6.3, 7.1, 7.2, 7.20, 7.21

State Environmental Planning Policy (Biodiversity Conservation) 2021, ss 4.9, Ch 4, Sch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 2.8, 4.6, Ch 2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.77, 2.138

Texts Cited:

Lake Macquarie Development Control Plan 2014

Category:

Principal judgment

Parties:

The Trustee for Landen Dev 14 Unit Trust (Applicant)
Lake Macquarie City Council (Respondent)

Representation:

Counsel:
H Grace (Applicant)
J McElvey (Respondent)

Solicitors:
K&L Gates (Applicant)
Lake Macquarie City Council (Respondent)

File Number(s):

2023/449645

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of development application DA/1567/2023 by the Respondent. The development application, as amended, seeks consent for staged Torrens Title subdivision (71 residential lots and 1 conservation lot), demolition of existing structures, road construction and civil works at 21 Colleen Lane, Wyee (Lot 472 in DP 755242).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 27 June 2024. Despite an adjournment of the conciliation conference no agreement was reached, and the conciliation conference was ultimately terminated on 13 August 2024 and the matter set down for hearing.

3. The parties approached the Court seeking orders for a further conciliation conference which was listed on 11 February 2025. I presided over the further conciliation conference. At the further conciliation conference, agreement was reached between the parties as to the terms of a decision that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application as amended. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 11 February 2024.

4. The Development Application as amended seeks development consent for   :

1. Demolition of existing structures and tree removal.

2. Dam dewatering.

3. Subdivision of the Site into:

1. 70 residential lots; and

2. 1 conservation lots.

4. The provision of water quality basin/wetland which will be temporarily used as sediment basins during construction.

5. The provision of a temporary cul-de-sac heads over the adjoining land which will be required in the event that the subject subdivision is carried out prior to a satisfactory state of completion of the subdivision of the adjoining land being achieved.

6. Associated civil works, and

7. Associated public road construction and dedication.

5. 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 form this state of satisfaction on the basis that:

1. The development includes works within an area of road reserve, being the extensions of Colleen Lane. At the time of the lodgement of the development application that road reserve was Crown Lane. On 24 May 2024, in accordance with s 152I of the Roads Act 1993, the Crown public road, being the unnamed road off Colleen Lane, was transferred to Lake Macquarie City Council. The Respondent provides owners consent for the works in the road reserve.

2. The adjoining landowner (Lot 1000 DP1280320) provides consent for the works associated with the temporary cul-de-sacs.

3. The development application was supported by landowners’ consent for the site.

4. The development application was publicly exhibited by the Respondent for 21 days between 22 September and 13 October 2023. No submissions were received.

5. On 26 September 2023, the development application was referred to Ausgrid in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). On 11 October 2023 the Respondent received a response from Ausgrid noting no concerns with the proposed development application.

6. On 26 September 2023, the development application was referred to Jemena in accordance with s 2.77 of SEPP TI. On 26 September 2023 the Respondent received advice from Jemena noting the proposed development will not impact on any of Jemena’s assets.

7. The Development Application is integrated development under s 4.46 of the EPA Act, as the site is mapped as bushfire prone land pursuant to s 100B of the Rural Fires Act 1997. On 17 January 2025 the NSW Rural Fire Service issued a Bushfire Safety Authority pursuant to section 100B and General Terms of Approval (GTAs) which are adopted in the agreed conditions of consent: s 4.47(3) of the EPA Act.

8. Further, the amended development application proposes activity within 40m of a mapped coastal wetland. The development application as lodged as integrated development. On 22 January 2024 the development application was referred to the Department of Planning and Environment (Water) (DPE Water). At the time the parties reached agreement, general terms of agreement had not been issued by DPE Water. By consent, the Applicant has amended their development application to no longer elect for the development to be integrated for a controlled activity approval under s 91 of the Water Management Act 2000. A condition of consent requires the Applicant to obtain this approval prior to commencement of works.

9. Part 7 of the Biodiversity Conservation Act 2016 (BC Act) requires biodiversity assessment where a development application is likely to significantly affect threatened species. Pursuant to s 7.2 of the BC Act, a development application is likely to affect threatened species if:

1. It is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test at s 7.3 of the BC Act, or

2. The development exceeds the Biodiversity Offsets Scheme (BOS) threshold if the BOS applies to the impacts of the development on biodiversity values, or

3. It is carried out in a declared area of outstanding biodiversity value.

10. The amended development application involves clearing of more than 1.82ha, triggering the BOS as the area of clearing exceeds those specified in s 7.2 of the Biodiversity Conservation Regulation 2017.

11. As the development application is likely to affect threatened species, a Biodiversity Development Assessment Report (BDAR) is required: s 7.7(2) of the BC Act. The BDAR which accompanies the amended development application is properly certified: s 6.15 of the BC Act. Compliance with the BDAR is required by the conditions of consent in Annexure A.

12. Further, I am satisfied that the proposed development implements appropriate avoidance and minimisation measures. The Court is assisted by expert ecology evidence. The experts have reached agreement that the proposed development has appropriately applied the principle of avoiding and minimising the direct and indirect impacts on the site’s biodiversity values. Having reviewed their agreed evidence and the BDAR, I accept their agreement.

13. Pursuant to s 7.16(2) of the BC Act a consent authority ‘must refuse’ a development application if it is of the opinion that the proposed development is likely to have a serious and irreversible impact (SII) on biodiversity values. The assessment of SII is based on the impacts that remain after measures taken to avoid or minimise the impact of the development. Section 6.7(2) of the BC Regulation provides that a SII arises because an impact is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct. The Biodiversity Development Assessment Report (BDAR) identifies two species for assessment of SII. Those species are the Chalinolobus dwyeri (Large-eared Pied bat) and the Vespadelus troughtomni (Eastern Cave bat). The BDAR concludes that the development will not have a SII on these species. The ecology experts agree with this conclusion. I accept their agreement.

14. The parties agree, and I accept, that on the basis of the proceeding the proposed development is unlikely to have a serious and irreversible impact on biodiversity values: s 7.16(2) of the BC Act.

15. Pursuant to Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the site is mapped as being within a proximity area for coastal wetlands. For land so mapped, s 2.8(1) of SEPP RH requires a consent authority to be satisfied that the proposed development will not significantly impact on:

1. The biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or

2. The quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

16. The development application is supported by a number of technical reports that conclude that the proposed development will not significantly impact on the matters listed at s 2.8(1) of SEPP RH. The matters at s 2.8(1) of SEPP RH are satisfied.

17. Pursuant to s 4.6 of SEPP RH, the consent authority must not grant consent to a development unless it has considered where a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be made suitable after undergoing remediation) for the proposed use. The development application is accompanied by a Stage 2 Detailed Site Investigation (DSI) prepared by Sydney Environmental Group dated 25 January 2023. That DSI found that, subject to the implementation of the reports recommendations, the site will be suitable for the proposed development. The annexed conditions require the implementation of the recommendations of the DSI.

18. Chapter 4 of State Environmental Planning Policy (Biodiversity Conservation) 2021 (SEPP BC) applies to the development as Lake Macquarie Council is listed in Sch 2 of SEPP BC. There is no approved Koala Plan of Management for the site. Pursuant to ss 4.9(2) and 4.9(3) before the grant of consent the consent authority must assess firstly whether the development is likely to have any impact on koalas or koala habitat and secondly, be satisfied that the development is likely to have low or no impact on koalas or koala habitat. The survey contained within the BDAR did not identify any koalas present on the site. Notwithstanding this, the BDAR proceeds on the basis that koalas are present and concludes that the development is likely to have a low impact on koalas and koala habitat. On this basis I am satisfied that cll 4.9 of SEPP BC is satisfied.

19. The amended development application seeks consent for the development of a stormwater management system. Pursuant to cl 2.138 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), development for the purposes of a stormwater management system may be carried out with consent. The amended development application is accompanied by civil engineering plans, a Land and Water Management Plan and Vegetation Management Plan. I am satisfied that it is appropriate to grant consent to the stormwater management system.

20. The Lake Macquarie Local Environmental Plan 2014 (LEP 2014) is the applicable environmental planning instrument. The land is part zoned R2 Low Density Residential and part C2 Environmental Conservation under LEP 2014. The subdivision works are proposed on the part of the site zoned R2 Low Density Residential. The proposed subdivision allows for new housing, which meets the objective of the R2 Low Density Residential zone to provide for the housing needs of the community in a low density environment.

21. A basin is proposed on the part of the site zoned C2 Environmental Conservation. The basin comprises environmental protection works which are permissible in the C2 Environmental Conservation zone.

22. Pursuant to cl 4.1 ‘Minimum subdivision size’, the part of the site zoned R2 Low Density Residential is subject to a minimum lot size of 450m², except for that portion of the site which is located within the Wyee Urban Release area where cl 4.1B of LEP 2014 applies. The planning experts agree, and I accept, that amended development application is compliant with the applicable lot size development standards. Further, the application relies on the exception to the minimum lot size provided at cl 4.1E for biodiversity conservation. I am satisfied the provisions of cl 4.1E(2) are met by:

1. The applicant’s letter of offer dated 3 February 2025 to enter into a Voluntary Planning Agreement (VPA) which includes suitable arrangement for the long-term protection, conservation and management of the lot, and

2. The inclusion of a condition of consent in Annexure A requiring the parties to enter into the VPA prior to the issue of the first subdivision certificate.

23. A portion of the site zoned C2 Environmental Conservation is located within a flood planning area. The part of the site zoned R2 Low Density Residential is not located within a flood planning area. As required by cl 5.21(2) of LEP 2014 I am satisfied that the development proposed within the portion of the site that is mapped (the urban stormwater treatment train) is compatible with the flood function and behaviour of the land and will not adversely affect flood behaviour, safe evacuation, or the environment. The requirements of cl 5.21 in LEP 2014 are met,

24. As the development application was lodged on 23 September 2023, cl 6.1 ‘Arrangements for designated State public infrastructure’ applies despite its subsequent repeal. As required by cl 6.1 a Satisfactory Arrangements certificate was issued on 15 January 2025.

25. Pursuant to cl 6.2 ‘Public utility infrastructure’ in LEP 2014 consent must not be granted unless the consent authority is satisfied that all of the services that are essential for the development are available, or that adequate arrangements have been made to make them available when required. The parties agree, and I accept that this clause is satisfied by the development application and the conditions in Annexure A.

26. Pursuant to cl 6.3 ‘Development Control Plan’, development consent must not be granted for development in an urban release area unless a development control plan has been prepared for the site. As noted at [5(22)], the site is located within the Wyee Urban Release area. Part 12 ‘Precinct Area Plans- Wyee West’ of the Lake Macquarie Development Control Plan 2014 (DCP 2014) has been adopted for the site, satisfying the requirements of cl 6.3 in LEP 2014.

27. A soil salinity assessment forms part of the development application. It confirms that the site is within an area mapped as ‘no known occurrence’ of acid sulphate soils and that the development proposed is not likely to be affected by acid sulphate soils. Accordingly, cl 7.1 of LEP 2014 does not apply.

28. The development application proposes earthworks. In determining the development application, I have considered the matters at cl 7.2(3) of LEP 2014. By reference to the Land and Water Management Plan, the civil engineering plans and the annexed conditions of consent I am satisfied that none of the listed matters warrant the refusal of the development application.

29. Clause 7.20 ‘Development on environmentally sensitive land’ applies as part of the site is mapped as environmentally sensitive land. Pursuant to cl 7.20(4) of LEP 2014 before granting consent to the development the consent authority must be satisfied that the development is sited, designed and managed to avoid potential adverse environmental impacts and potential environmental hazards. The amended development application is accompanied by relevant technical assessment and reports including a Bushfire Hazard Assessment, Arboricultural Report, and BDAR. These reports address the matters for consideration at cl 7.20(3) and assist me reaching the state of satisfaction required by cl 7.20(4) of LEP 2014.

30. Consistent with the findings at [5(25)] I am satisfied that the development application contains information and is accompanied by plans which enable me to be satisfied that the essential services required by the development are available or that adequate arrangements have been made to make them available when required. Clause 7.21 of LEP 2014 is satisfied.

31. DCP 2014 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP 2014. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. Further, 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.

8. The Court notes that the Respondent, as the relevant consent authority under s 38 of the Environmental Planning and Assessment Regulation, agrees to the Applicant amending development application DA1567/2023 for which sought with the following documents:

Tab	Document	Date
1.	Revised Statement of Environmental Effects prepared by Cohesive Planning	10 February 2025
Plans
2.	Concept Engineering Plan Set prepared by North Western Surveys – Rev I (cover sheet)	31 January 2025
3.	Landscape Plan Set prepared by Moir Landscape Architecture – Rev D	12 August 2024
4.	Plan of Proposed Subdivision prepared by North Western Surveys	30 January 2025
5.	Plan of Proposed Subdivision Density prepared by North Western Surveys	17 July 2024
6.	Building Envelope Plan Set prepared by A&N Design – Rev E	November 2024
Reports
7.	Arboricultural Impact Assessment – Addendum s34 Statement of Facts and Contentions Report (Rev 5.1)	1 May 2024
8.	Arboricultural Impact Assessment & Tree Protection Plan (Rev 4.1)	1 May 2024
9.	Vegetation Management Plan including Riparian Area on 1st Order Waterway and Coastal Wetland buffer prepared by Ecological Consultants Australia Pty Ltd TA Kingfisher Urban Ecology and Wetlands	3 February 2025
10.	Land and Water Management Plan prepared by Woodlots & Wetlands (Rev 10)	3 February 2025
11.	Vegetation Management Plan for the Stormwater Treatment Train and Drainage Point from Lot 472 DP 755212, 18 Colleen Lane prepared by Woodlots & Wetlands (Rev 7)	9 December 2024
12.	Biodiversity Development Assessment Report prepared by Ecological Consultants Australia Pty Ltd TA Kingfisher Urban Ecology	3 February 2025
13.	Considerations of Impacts to the Coastal Wetland and Section 2.8 of the SEPP (Resilience and Hazards) 2021 prepared by Ecological Consultants Australia Pty Ltd TA Kingfisher Urban Ecology and Wetlands	January 2025
14.	Waste Management Plan prepared by North Western Surveys – Rev B	14 June 2024
15.	Bushfire Assessment Report prepared by CBAA Bushfire Experts	5 December 2024
16.	Dam Dewatering Assessment prepared by Sydney Environmental Group	4 June 2024
17.	Scenic Impact Assessment Report prepared by Cohesive Planning	7 June 2024
Miscellaneous
18.	Owner's Consent – Saltro Developments (NSW) Pty Ltd	25 November 2024
19.	Secretary's Certificate – Satisfactory Arrangements for Designated State Public Infrastructure	15 January 2025
20.	Rural Fire Services NSW General Terms of Approval	10 February 2025
21.	Letter of Offer from Landen Property to Lake Macquarie City Council	3 February 2025
22.	DPE Water Request for Information	16 December 2024
23.	Kingfisher Urban Ecology and Wetlands correspondence responding to DPE Water's RFI	29 January 2025
24.	Ausgrid Letter	11 October 2023
25.	Hunter Water Letter	25 November 2024

9. Further the Respondent agrees to the Applicant amending development application DA1567/2023 so as to no longer seek integrated approval under s 91 of the Water Management Act 2000.

Orders

10. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development Application DA/1567/2023 seeking consent for Torrens Title subdivision (70 residential lots and 1 conservation lot), demolition of existing structures, road construction and civil works and 21 Colleen Lane, Wyee (Lot 472 DP 755242) is approved subject to the conditions set out in Annexure A to this agreement.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 06 March 2025