Universal Property Group v Kiama Municipal Council

[2022] NSWLEC 1634

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group v Kiama Municipal Council [2022] NSWLEC 1634

Hearing dates:

30 September, 5 and 12 October 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is to pay the Council’s costs in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $14,000 within 28 days of the date of these orders.

(2) The appeal is upheld.

(3)   Development consent is granted to Development Application No. 10.2021.361.1, as amended, for the subdivision of land into 11 Torrens title lots, demolition of existing bollards located at the end of Barton Drive, relocation of a power pole and power line, construction of road access, provision of stormwater infrastructure, landscaping and earthworks on land legally described as Lot 12 in DP1122990 and known as Lot 12 Barton Drive, Kiama Downs, NSW, 2533, subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environment Planning and Assessment Regulation 2000). cl 55

Kiama Local Environmental Plan 2011, cll 2.3, 2.6, 2.7, 4.1, 5.21, 6.2, 6.5, 6.12

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, cll 2.11, 4.6

Texts Cited:

Kiama Development Control Plan 2020

Kiama Municipal Council, Community Participation Plan (2019)

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Universal Property Group (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor)(Applicants)
P Hudson (Solicitor)(Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/105132

Publication restriction:

No

Judgment

1. COMMISSIONER: Universal Property Group (the Applicant) has appealed the refusal by Kiama Municipal Council (the Respondent) of its development application no. 10.2021.361.1, made with owner’s consent, seeking consent for the subdivision of land into 11 Torrens title lots, demolition of existing bollards located at the end of Barton Drive, relocation of a power pole and power line, construction of an access place, provision of stormwater infrastructure, landscaping and earthworks on land legally described as Lot 12 in DP1122990 and known as Barton Drive, Kiama Downs, NSW, 2533 (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Proposed Development was notified in accordance with the provisions of Kiama Community Participation Plan 2019 between 10 February and 23 February 2022, and then an amended application was notified between 11 April and 24 April 2022. Eight submissions were received in response to the initial notification and one submission was received in response to the later notification of the amended proposal.

4. On 30 September and then 5 and 12 October 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s development application, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Land and Environment Court’s COVID-19 Pandemic Arrangements Policy. A site inspection was undertaken prior to the conciliation conference being convened, and one objector made submissions during the site view particularly in relation to access through the Subject Site following subdivision.

6. At the conciliation conference following the site view, the Parties reached an 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 consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. the Subject Site is zoned R2 Low Density Residential under the provisions cl 2.3 of Kiama Local Environmental Plan 2011 (KLEP), and:

1. the subdivision of land is permitted within the R2 zoning of the Subject Site under cl 2.6 of KLEP; and

2. the Parties agree, and I am satisfied, that the Applicant’s amended development application is consistent with the R2 zone objectives applicable to the Subject Site;

2. in relation to the further provisions of KLEP:

1. in relation to the provisions of cl 2.7 of KLEP, the Applicant’s amended DA seeks development consent for the demolition of bollards on site, which can be carried out with development consent;

2. the lots within the Applicant’s proposed subdivision have a minimum lot size of 450m², consistent with the provisions of cl 4.1 of KLEP;

3. the Parties have advised, and I am satisfied, that the provisions of cl 5.21(2) of KLEP, which are a precondition to the grant of consent, have been satisfied on the basis that:

1. the Applicant’s Amended development application is accompanied by flood mappings and a flood study and maps;

2. the Applicant’s flood model, which includes consideration of climate change factors, confirms that any future dwelling can be constructed above the 100 year average recurrence interval (ARI) flood level, including in circumstances where there is a100% blockage of stormwater systems;

3. the Applicant’s flood modelling and report confirms that the Applicant’s proposed 900mm diameter stormwater pipe is sufficient to capture the upstream catchment flows without overtopping of the system at the cul-de-sac within Barton Drive;

4. the Proposed Development will not adversely affect flood behaviour such that it might result in a detrimental increase in the flood affectation of neighbouring properties;

5. pedestrian and vehicular evacuation will be possible from all proposed lots in all storm events up to including the 1% Annual Exceedance Probability (AEP) event, and for events in excess of the 1% AEP event, all lots, with the exception of Lot 1, would maintain access for pedestrians and emergency vehicles. In relation to proposed Lot 1, should flows within the road reserve become hazardous the Parties agree that residents of that lot should stay in place as the lot itself would remain flood free and the predicted flood peak duration is approximately 15 mins.

6. the Subject Site is bisected by a degraded category 2 watercourse and. the Proposed Development will not give rise to erosion, siltation, or destruction of riparian vegetation o and would not impact the stability of the watercourse;

4. further. the Parties agree, and I am satisfied, that the matters identified in cl 5.21(3) of KLEP in relation to flood planning have been considered, and in relation to this:

1. the Applicant’s amended development application is accompanied by flood mapping and an assessment of potential impacts against flood mapping levels;

2. all future dwellings on the Subject Site can and will be constructed above the 100 year ARI flood levels; and

3. the Applicant has proposed the installation of a 900mm diameter stormwater pipe on the Subject Site for the purpose of stormwater management and this will be sufficient to capture and convey all upstream catchment flows through the Subject Site without any overtopping of flows occurring at the cul-de-sac within Barton Drive.

5. the Parties agree, and I am satisfied, that the matters identified in cl 6.2(3) of KLEP in relation to earthworks have been considered, and in relation to this:

1. the Proposed Development would manage flow, with water directed following detention and water quality treatment to Riverside Drive and Barton Drive;

2. the Applicant’s proposed earthworks would facilitate future residential subdivision;

3. limited material would be generated by the proposed earthworks, and this would be transferred off the Subject Site via a licenced contractor;

4. limited earthworks are proposed by the Applicant, and this would have no associated impacts on amenity;

5. the Applicant’s amended development application is accompanied by an Aboriginal heritage due diligence assessment report, which confirmed that there are no aboriginal heritage sites recorded on the Aboriginal Heritage Information Management System within an area covering the Subject Site and a 50m buffer around the site; and

6. the Proposed Development would provide for stormwater to be detained and treated on-site to ensure that the Proposed Development would have no impact on waterways or environmentally sensitive areas;

6. the Parties have advised, and I am satisfied, that the provisions of subcl 6.5(3) have been considered in relation to the Proposed Development, and the further provisions of subcl 6.5(4), which are a precondition to the grant of consent, have been satisfied on the basis that the Subject Site contains a class 2 watercourse and in relation to this:

1. the Parties water engineering experts have agreed that the Applicant’s amended development application will not have an adverse impact on the watercourse;

2. the flows within the watercourse have already been disturbed by the construction of both Barton Drive and Riverside Drive, noting that the area mapped as the watercourse includes areas of overland flow and the watercourse has no vegetation associated with its path other than grasses. As a consequence, the Subject Site, and in particular the mapped watercourse, currently has no identified riparian values other than serving to convey overland water flows during storm events, and which in future will flow via the stormwater management infrastructure proposed to be installed on the Subject Site by the Applicant;

3. further, the Parties agree that the Proposed Development has been designed, sited and will be managed, via the stormwater management infrastructure, to minimise and adverse impacts to the subject watercourse;

7. the Parties agree, and I am satisfied, that the matters identified in cl 6.12 of KLEP in relation to essential services have been considered, and in relation to this the following services are available or adequate arrangements have been made to make them available when required:

1. the supply of water;

2. the supply of electricity, in relation to which the Applicant’s development application was referred to Endeavor Energy (EE) for comments, and the parties agreed conditions of consent accord with EE requirements;

3. the disposal and management of sewage;

4. stormwater drainage or on-site conservation; and

5. suitable road access from an extension of Barton Drive. Proposed Lot 1 is accessible from Riverside Drive;

3. in relation the provisions of cl 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) in relation to the potential impacts of the Proposed Development on the coastal use area:

1. the Applicant’s amended development application maintains safe access to the foreshore and beach from Barton Drive to Riverside Drive, including;

1. a proposed 4m wide accessway through the Subject Site is proposed to connect to a 1.2m wide footpath;

2. no stopping and pedestrian refuge signs are to be provided for a pedestrian crossing to be located at the end of the proposed footpath;

3. a pedestrian refuge to Riverside Drive is also proposed for construction and a pram ramp is to be constructed on the opposite side of Riverside Drive to facilitate crossing of the road;

2. an Aboriginal due diligence assessment prepared by the Applicant in relation to the proposed Development confirmed that the Subject Site does not contain areas of potential archaeological deposit and assess that it is unlikely that the Subject Site was utilised historically by Aboriginal people given the steep topography of the site;

3. as a consequence of the advice presented above (at [(a)] and [(b)]):

1. the matters identified in subcl 2.11(1)(a) of SEPP R&H have been considered and the Proposed Development is unlikely to cause an adverse impact on the items identified in the subclause; and

2. the Parties have advised, and I am satisfied, that the matters identified in subcl 2.11(1)(b) have been satisfactorily addressed by the Applicant;

4. in relation the provisions of cl 4.6 of SEPP R&H, the Parties advise, and I am satisfied, that the Applicant has undertaken an environmental site assessment based on that assessment the Subject Site is considered unlikely to contain any gross ground contamination, and accordingly, the Subject Site is suitable for its intended future use for residential development, such that the provisions of cl 4.6 of SEPP R&H are satisfied;

5. the Parties have confirmed that the relevant provisions of Kiama Development Control Plan 2020 (KDCP) have been considered in relation to the Proposed Development, and I am satisfied that:

1. the Proposed Development either meets the relevant controls within KDCP or it achieves the objectives of those controls such that it represents a reasonable alternative meriting flexibility in their application;

2. there is no provision of KDCP that would form a basis for refusal of the Proposed Development, including in relation to the following matters:

1. in relation to road design, the Applicant’s proposed lot layout provides a minimum 3.5m verge;

2. in relation to subdivision design, the Applicant has provided a building footprints & lot setbacks plan confirming that its proposed lots provide adequate amenity for future residents with sufficient setbacks and private open space;

3. in relation to waste servicing, the Applicant’s proposed cul-de-sac head has a radius of 10.5m, and the Applicant’s Garbage Truck Turning Path Plans for a 9.4m long vehicle has confirmed that the cul-de-sac is of a sufficient size to accommodate the require paths of travel for those vehicles;

4. the Applicant’s building footprints and lot setbacks plan has also demonstrated that the proposed locations of bins from each lot are accessible by waste collection vehicles and so are appropriate; and

5. in relation to pedestrian access, the Proposed Development, as amended, includes a 4m wide public pathway and 1.2m wide footpath to provide a formal pedestrian access from Barton Drive through the Subject Site to Riverside Drive;

6. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors which is a relevant consideration under section 4.15(1)(d) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

3. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am 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 Court notes that:

1. the Council, as the relevant consent authority, has consented to (pursuant to cl 55 of the Environment Planning and Assessment Regulation 2000) the Applicant amending Development Application No. 10.2021.361.1 in accordance with the amended plans and documents lodged on the NSW Planning Portal on 2 November 2022 and filed with the Court on 4 November 2022 as described below:

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plans
1	Dwg DA02 Rev 6	Subdivision Plan	The Bathla Group	23 September 2022
	Dwg DA03 Rev 6	Building Footprints & Lot Setbacks		23 September 2022
Survey Plan
2	Dwg DA01 Rev 6	Subdivision Survey	The Bathla Group	23 September 2022
Engineering Plans
3	Dwg 000 Rev G	Cover Sheet	Orion Consulting	18 October 2022
	Dwg 001 Rev F	General Layout Plan, Notes & Legend		18 October 2022
	Dwg 002 Rev F	Demolition Plan		18 October 2022
	Dwg 003 Rev F	Site Regrading Plan		18 October 2022
	Dwg 004 Rev F	Site Regrading Sections		18 October 2022
	Dwg 100 Rev F	Sediment and Erosion Control Plan		18 October 2022
	Dwg 101 Rev E	Sediment and Erosion Control Notes		18 October 2022
	Dwg 200 Rev G	Engineering Plan		18 October 2022
	Dwg 300 Rev F	Typical Road Cross Sections		18 October 2022
	Dwg 301 Rev D	Road Longitudinal Sections		18 October 2022
	Dwg 400 Rev F	Access Road OSD/WSUD Tank Stormwater Catchment Plan		18 October 2022
	Dwg 401 Rev E	On Site Detention Plan and Details		18 October 2022
	Dwg 402 Rev A	Retaining Wall Details		18 October 2022
Site Sections
4	Dwg 010 Rev 01	Lots 1 & 2 Site Sections	Orion Consulting	18 October 2022
	Dwg 011 Rev 01	Lots 3 & 4 Site Sections		18 October 2022
	Dwg 012 Rev 01	Lots 5 & 6 Site Sections		18 October 2022
	Dwg 013 Rev 01	Lots 7 & 8 Site Sections		18 October 2022
	Dwg 014 Rev 01	Lots 9 & 10 Site Sections		18 October 2022
	Dwg 015 Rev 01	Lot 10 Site Sections		18 October 2022
Turning Paths
5	Dwg 009 Rev 04	9.4m Garbage Truck Turning Path Plans	Orion Consulting	14 October 2022
Reports
6	Flood Study, Lot 12 Barton Drive, Kiama Downs		Site Plus	August 2022
7	Flood Mappings Revision C		SitePlus	18 October 2022
8	Flood Level Impacts Revision C		SitePlus	18 October 2022
9	Report on Geotechnical Investigation		Terra Insight	7 September 2022
10	Draft s88B Instrument
11	Draft Deposited Plan Administration Sheet
12	Draft Plan of Subdivision		SDG Pty Ltd	19 October 2022
13	Arboricultural Impact Assessment		Hugh the Arborist	4 August 2022

Orders

14. The Court orders that:

1. The Applicant is to pay the Council’s costs in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $14,000 within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 10.2021.361.1, as amended, for the subdivision of land into 11 Torrens title lots, demolition of existing bollards located at the end of Barton Drive, relocation of a power pole and power line, construction of road access, provision of stormwater infrastructure, landscaping and earthworks on land legally described as Lot 12 in DP1122990 and known as Lot 12 Barton Drive, Kiama Downs, NSW, 2533, subject to the conditions at Annexure A.

…………………………..

M Chilcott

Commissioner of the Court

105132.22 Annexure A (419209, pdf)

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Decision last updated: 16 November 2022