Tonni v Shoalhaven City Council

[2025] NSWLEC 1140

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tonni v Shoalhaven City Council [2025] NSWLEC 1140

Hearing dates:

Conciliation Conference held on 29 January, 13 and 24 February 2025

Date of orders:

12 March 2025

Decision date:

12 March 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, in the amount of $5,000.00, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA 2024/1105 for the demolition of existing structures, land subdivision into two Torrens Title Lots and construction of one dual occupancy (attached) on each new lot, currently Lot 49 in DP 23011 known as 451 Princes Highway, Bomaderry NSW 2541, subject to conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – Torrens title subdivision – dual occupancy development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.16, 8.7, 8.15, Sch 1, Pt 1, s 7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38, Sch 7

Shoalhaven Local Environmental Plan 2014, cll 2.6, 2.7, 4.1, 4.3, 4.4, 7.1, 7.2, 7.11

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

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120

Texts Cited:

Shoalhaven City Council, Community Participation Plan

Category:

Principal judgment

Parties:

Mantasha Tonni (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor)(Applicant)
A Menyhart (Solicitor)(Respondent)

Solicitors:
Conomos Legal (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2024/278913

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA 2024/1105 (Development Application) seeking consent for the demolition of existing structures, land subdivision into two Torrens Title Lots, and construction of an attached dual occupancy on each new lot and associated structures including garages and a battle-axe driveway (Proposed Development) at 451 Princes Highway, Bomaderry legally described as Lot 49 in DP 23011 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 29 January, 13 and 24 February 2025. I presided over the conciliation conference.

3. On 12 September 2024, the Council filed its Statement of Facts and Contentions (SOFAC). In the SOFAC, the Council contented that the Development Application should be refused based on 13 contentions. The Parties agree that all contentions raised in the SOFAC have been resolved by the:

1. amended plans and documents referred to at [30(1)]; and

2. agreed conditions of consent at Annexure A.

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 and granting development consent to the development application subject to conditions.

5. 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. 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.

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

7. 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 to be the applicable terms of the State Environmental Planning Police (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and the Shoalhaven Local Environmental Plan 2014 (SLEP). The parties explained how the jurisdictional prerequisites have been satisfied.

8. The Development Application was lodged with the consent of the owner of the Site: s 23, Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

9. Pursuant to s 7 of Pt 1 of Sch 1 to the EPA Act, the minimum public exhibition period is the period specified in the relevant community participation plan or otherwise 14 days.

10. The Council’s Community Participation Plan specifies 14 days as the minimum public exhibition period.

11. The Development Application was notified to residents on 18 April 2024 to 2 May 2024. Two submissions were received. At the commencement of the conciliation conference, which commenced at the Site, the adjoining neighbour made oral submissions and invited the Court to view the Site from his front yard and to observe the location of his garden adjoining the Site and the location of windows along the side of the dwelling adjoining the Site.

12. The Site is zoned R2 Low Density Residential under the SLEP.

13. The Site is not identified as bushfire prone land: s 4.14, EPA Act.

14. The Development Application seeks consent for

1. the subdivision of the Site into two Torrens title lots: cl 2.6 SLEP

1. The proposed lot “Site A” is 572.1m², and the proposed lot “Site B” is 536.5m² (excluding the battle-axe access handle per cl 4.1(3A) of the SLEP and therefore both proposed lot sizes comply with the minimum lot size development standard of 500m² pursuant to cl 4.1 of the SLEP;

2. demolition of existing structures: cl 2.7 SLEP; and

3. construction of dual occupancy which is permissible with consent in the R2 zone: Land Use Table, SLEP

15. The Proposed Development is likely to affect an electricity transmission or distribution network as it is within 5 metres (m) of an exposed overhead electricity power line and the Development Application has been notified to the electricity supply authority, Endeavour Energy, pursuant to s 2.48 of the Transport and Infrastructure SEPP. The Council has considered their response in accordance with s.2.48(2)(b) of the Transport and Infrastructure SEPP and has included appropriate conditions of consent as requested by Endeavour Energy such as condition4.

16. The concurrence of TfNSW to the development application is not required under the Transport and Infrastructure SEPP.

17. The Proposed Development has a single road frontage on to a classified road and the Applicant relies on traffic engineering report prepared by Lachlan Ellson dated 7 February 2025. Accordingly, I am satisfied as required by s 2.119 of the Transport and Infrastructure SEPP that there is no vehicular access by a road other than the classified road and that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the Proposed Development as a result of the design of the vehicular access or the nature, volume or frequency of vehicles using the classified road to gain access to the Site.

18. Section 2.120 of the Transport and Infrastructure SEPP deals with impact of road noise and vibration on non-road development and applies to residential accommodation. The requirements of that section, including consideration of relevant guidelines, are satisfied having regard to the acoustic report dated 14 January 2025 prepared by Koikas Acoustics, and in particular Parts 4.2 and 5.3 of that report, and the imposition of suitable conditions of consent such as condition 5.

19. Section 4.6 of the Resilience and Hazards SEPP provides that the consent authority must consider if the land is contaminated and, if the land is contaminated, it is satisfied that the land is suitable in its contaminated state or will be made suitable with appropriate remediation. In that regard, the Site is currently used for domestic residential purposes and there is no proposed change in use. There are no known previous uses that would lead to the Site being contaminated or unsuitable for the Proposed Development. Accordingly, it is not necessary for the consent authority to consider a report specifying the findings of a preliminary investigation of the Site carried out in accordance with the contaminated land planning guidelines: s.4.6(2), Resilience and Hazards SEPP).

20. The Proposed Development involves the erection four dual-occupancies and is, therefore, BASIX development. Section 27 of the EPA Regulation provides that a development application for BASIX development must be accompanied by a BASIX certificate for the development issued no earlier than 3 months before the day on which that application is submitted on the NSW planning portal. The expression “BASIX development” includes development that involves the erection of a BASIX building which, in turn, is defined as a building containing at least one dwelling: Sch 7 of the EPA Regulation.

21. The amended Development Application is accompanied by an updated BASIX certificate in accordance with s 27 of the EPA Regulation. The BASIX certificate for the Proposed Development accords with the requirements of State Environmental Planning Policy (Sustainable Buildings) 2022.

22. Clause 4.3 of the SLEP and the Height of Buildings Map specifies a maximum height of building (HOB) development standard of 8.5m for the Site. The maximum HOB of the Proposed Development complies with the HOB development standard because a maximum height of 8.04m is proposed.

23. The Site is not subject to any floor space ratio development standard: cl 4.4 and Floor Space Ratio Map, SLEP.

24. The Site is shown on the Acid Sulfate Soils Map as being Class 5 land. Clause 7.1(2) and (3) of SLEP provide as follows:

1. development consent is required to carry out works on Class 5 land, works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum and by which the water table on that adjoining land is likely to be lowered below 1m Australian Height Datum, and

2. development consent must not be granted for such works unless an Acid Sulfate Soils Management Plan (ASSMP) has been prepared and provided to the consent authority.

25. Class 2 land is located approximately 380m to the east-southeast. Class 4 land is located approximately 280m to the southwest. The maximum depth of cut for the Proposed Development is 915mm. Accordingly, the works are not considered likely to affect the water table on adjoining classes of land and therefore no ASSMP is required.

26. Clause 7.2 of the SLEP provides that development consent is required for earthworks unless the work is exempt development or is considered to be of a minor nature. Before granting development consent for earthworks, the consent authority must consider the matters set out in cl. 7.2(3). The cut and fill proposed in the Development Application is depicted on the amended Sections (DA5.01) and Elevations (DA6.01) plans. The parties have considered the matters in cl.7.2(3) and the earthworks are not expected to have any detrimental impact on the environment or adjoining properties, and appropriate conditions of consent have been proposed, including in relation to erosion and sediment controls.

27. The Site has existing access to water, electricity and the sewerage services and adequate supply for the Proposed Development is achieved as required by cl 7.11 of the SLEP. The Court is also satisfied that suitable vehicular access is provided as set out in the traffic engineering report prepared by Lachlan Ellson dated 7 February 2025.

28. 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. I adopt the reasons given by the parties as set out in this judgment.

29. 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.

Notations:

30. The Court notes that:

1. The Respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant’s application for an amendment to Development Application No. DA 2024/1105 to rely on the following plans and documents:

1. Swept Path Diagrams, prepared by Transport and Traffic Planning Associates, dated 10 February 2025.

2. Architectural Plans, prepared by JSA Studio, dated 10 February 2025.

3. Landscape Plans, prepared by Captivate, dated 11 February 2025.

4. Civil Engineering Plans, prepared by AD Design and Consulting, dated 11 February 2025.

5. BASIX Certificate 1354274M_04, dated 11 February 2025.

6. BASIX Certificate 1354605M_04, dated 11 February 2025.

7. Acoustic Report, prepared by Koikas Acoustics, dated 14 January 2025.

8. Traffic Engineering Report prepared by Lachlan Ellson dated 7 February 2025.

Orders:

31. The Court orders:

1. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, in the amount of $5,000.00, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA 2024/1105 for the demolition of existing structures, land subdivision into two Torrens Title Lots and construction of one dual occupancy (attached) on each new lot, currently Lot 49 in DP 23011 known as 451 Princes Highway, Bomaderry NSW 2541, subject to conditions set out in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

**********

Decision last updated: 12 March 2025