Willow Properties Pty Ltd v Wingecarribee Shire Council

[2024] NSWLEC 1319

Land and Environment Court

New South Wales

Medium Neutral Citation:

Willow Properties Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1319

Hearing dates:

Conciliation Conference on 31 May 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   The Development Application No DA23/0852 is determined by grant of consent for detached dual occupancy and Torrens title subdivision including tree removal at 105 Ascot Road, Bowral (legally known as Lot 1 and Lot 2 in DP 1286007) subject to the conditions contained at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Rural Fires Act 1997, s 100B

Biodiversity Conservation Regulation 2017, ss 7.2, 7.3

Environmental Planning and Assessment Regulation 2021, s 38

Rural Fires Regulation 2022, s 45

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

Wingecarribee Local Environmental Plan 2010, cll 2.6, 4.1, 4.2E

Texts Cited:

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

Category:

Principal judgment

Parties:

Willow Properties Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor)(Applicant)
R McCulloch (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/435958

Publication restriction:

No

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 DA23/0852 for detached dual occupancy development and Torrens title subdivision (the Proposed Development) at 105 Ascot Road Bowral legally described as Lots 1 and 2 in DP 1286007 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 31 May 2024. I presided over the conciliation conference.

3. 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.

4. 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.

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

6. 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 and the parties explained how the jurisdictional prerequisites have been satisfied in a joint jurisdictional note.

7. The Proposed Development was notified by the Respondent between 1 and 21 March 2023 and no submissions were received.

8. Owner’s consent is given for lodgement of the Development Application and the Court notes that both lots are registered in the name of the same owner.

9. The updated Bushfire Hazard Assessment dated 8 May 2024 prepared by Bushfire Planning and Design provides that the development conforms to the relevant specification and requirements of Planning for Bushfire Protection (2019) and the report addresses the requirements of s 45 of the Rural Fires Regulation 2022. On 28 March 2023, NSW Rural Fire Service issued General Terms of Approval (GTA) in accordance with s 100B(3) of the Rural Fires Act 1997 requires a person to obtain bush fire safety authority before developing bush fire prone land for purposes of a subdivision. Council has integrated the GTA into the conditions of consent.

10. The Statement of Facts and Contentions (SOFAC) filed by the Respondent on 12 February 2024 contends at Contention 1 that the Development Application does not accurately assess whether or not the development exceeds the biodiversity offsets scheme threshold under the Biodiversity Conservation Act 2016. The parties explain that the Statement of Facts and Contentions in Reply filed by the Applicant together with the updated reports set out how the biodiversity offsets scheme threshold is not breached as follows:

1. the proposed area has an impact less than 0.25ha (s 7.2, Biodiversity Conservation Regulation 2017); and

2. whist the Site has now been mapped on the Biodiversity Values Map, this occurred after the Development Application was lodged and therefore the Proposed Development is saved by virtue of s 7.3(5) of the Biodiversity Conservation Regulation 2017.

11. The Flora and Fauna Assessment and Arboricultural Impact Assessment both dated 7 May 2024 and both prepared by Enviro Ecology, consider the potential impacts of the development upon flora and fauna. The application has been amended through the conciliation process to retain two further trees that were originally marked for removal. The removal of all other trees is required to establish an Asset Protection Zone as set out in the reports.

12. Contention 5 in the SOFAC contends that fill material has been observed on the Site and Ch 4 of State Environmental Planning Policy (Resilience and Hazards) 2021 (R&H SEPP) deals with the remediation of land. It has aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment. In response to that contention, and in order to satisfy the terms of s 4.6 of the R&H SEPP, the Statement of Facts and Contentions in Reply (SOFACR) filed by the Applicant on 11 April 2024 provides at page 2 as follows:

“it is noted that the Council was the original owner of the greenfields subject site, being previously zoned educational establishment and set aside for a school. The Council rezoned the undeveloped site and surrounding land in the same block to residential R2 and sold the entire block to the applicant. In September 2018, Council (through s34 agreement) granted development consent for the residential redevelopment of Lot 38 DP 22999 which included Lot 17 DP 21563 …”

13. Then at page 5 as follows:

“Contention 5 – Fill Material

The Site is an undeveloped greenfield site. Fill material has not been imported onto the site. The original site soil material has been disturbed for the purposes of creating the required Asset Protection Zone for the adjoining original lots and as part of access spoil from the excavation of footing from the adjoining developments at Lot 2 DP 1286007 and Lot A DP 393343 in accordance with development consents DA 17/0008 and DA 23/0004. These neighbouring allotments were also a greenfield site which are being developed in accordance with development consent from Council. Council, rightfully, did not raise any issue in relation to contamination on those sites and their development was approved on that basis. There is no factual or historical basis for concluding that external fill material has been placed on the site. Any disturbance of soil relates only to the development of the greenfields site adjoining, which Council has previously and only recently accepted for redevelopment and accepted was not contaminated such that remediation would be required there. There is therefore, no importation of fill that needs consideration.”

14. Wingecarribee Local Environmental Plan 2010 (WLEP) includes a number of jurisdictional provisions as follows:

1. Subdivision is a permissible development with consent (cl 2.6).

2. Pursuant to the Land Use Table, the Site is zoned R2 Low Density Residential where dual occupancies are permissible with consent.

3. The plans show that the 2 lots will be greater than 700m² each being the minimum subdivision lot size development standard prescribed for the Site pursuant to cl 4.1.

4. The Site is 1,480m² and therefore complies with the 1000m² minimum lot size for dual occupancy development pursuant to cl 4.2E.

15. 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.

16. 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:

17. The Court notes that Wingecarribee Shire Council, as the relevant consent authority, approves under section 38 of the Environmental Planning and Assessment Regulation 2021 the Applicant amending Development Application No DA23/0852 to include the following plans:

Plan Ref	Date	Description	Issue
Architectural Plans prepared by Hotondo Homes
CC-01	7.5.24	Site Analysis Plan	L
CC-02	7.5.24	Site Plan	L
CC-03	7.5.24	Ground Floor Plan	L
CC-04	7.5.24	South West Elevation and South East Elevation	L
CC-05	7.5.24	North East Elevation & North West Elevation	L
CC-06	7.5.24	Cross Section AA	L
CC-07	7.5.24	Cross Section BB	L
CC-08	7.5.24	Cross Section CC	L
CC-09	7.5.24	Cross Section DD	L
Landscape Plans prepared by Blanc Space Studio
3.5.24	Context Plan	6
10.4.24	Planting Plan Unit 01	3
3.5.24	Planting Plan Unit 02	6
3.5.24	Main Elevations	6
3.5.24	Planting Details	6
3.5.24	Lighting Plan	6

Together with the:

1. Bushfire Hazard Assessment prepared by Bushfire Planning & Design dated 8 May 2024;

2. Arboricultural Impact Assessment prepared by Enviro Ecology dated 7 May 2024;

3. Flora and Fauna Assessment prepared by Enviro Ecology dated 7 May 2024; and

4. Lot 2 Owners Consent dated 23 May 2024.

Orders:

18. The Court orders:

1. The appeal is upheld.

2. The Development Application No DA23/0852 is determined by grant of consent for detached dual occupancy and Torrens title subdivision including tree removal at 105 Ascot Road, Bowral (legally known as Lot 1 and Lot 2 in DP 1286007) subject to the conditions contained at Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 June 2024