Land and Environment Court New South Wales Medium Neutral Citation: The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista v Wollongong City Council [2021] NSWLEC 1129 Hearing dates: Conciliation conference on 2 March 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders (see [17]) Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy No 44—Koala Habitat Protection State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 Water Management Act 2000 Wollongong Local Environmental Plan 2009 Cases Cited: Rose Bay Afloat Pty Ltd v Woollahra Municipal Council (2002) 126 LGERA 36; [2002] NSWLEC 208 Rothwell Boys Pty Ltd v Coffs Harbour Council (2012) 186 LGERA 366; [2012] NSWLEC 19 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: The Trustee for Wombarra Vista Trust trading as Wombarra Vista (Applicant) Wollongong City Council (Respondent) Representation: Counsel: M Staunton (Applicant) C McEwen SC (Respondent) Solicitors: Foundation Law Group (Applicant) Wollongong City Council (Respondent) File Number(s): 2019/405943 Publication restriction: No Judgment 1. COMMISSIONER: The Trustee for Wombarra Vista Unit Trust trading as Wombarra Vista (the Applicant) has appealed the deemed refusal by Wollongong City Council (the Respondent) of its development application (DA-2019/1198) which seeks consent for Torrens Title subdivision of land, construction of new public access and roads, tree removal and bulk earthworks, installation of stormwater infrastructure, bushfire risk management, removal of contaminated ballast stockpiles and asbestos contamination, for the purpose of residential development (the Proposed Development) at 630-636 Lawrence Hargrave Drive, Wombarra (the Subject Site). 2. The Subject Site is zoned R2 Low Density Residential under the provisions of Wollongong Local Environmental Plan 2009 (WLEP), and the Proposed Development is permissible within that land use zone. 3. The development application for the Proposed Development is made with owners' consent, and the Parties specifically advised that: 1. The Proposed Development includes work on the adjoining land of Coledale Hospital being Lot 1 in DP 32842 and Lot 13 DP 5553 owned by the Health Administration Corporation. Owner's consent has been provided on 22 April 2020; 2. in relation to any amendments to the development since the grantof owner's consent, the Court in Rothwell Boys Pty Ltd v Coffs Harbour Council (2012) 186 LGERA 366; [2012] NSWLEC 19 confirmed that once landowner's consent is given to a development application, no further consent is required even if the development application is amended prior to determination. Also see Rose Bay Afloat Pty Ltd v Woollahra Municipal Council (2002) 126 LGERA 36; [2002] NSWLEC 208at [89]; 3. they are satisfied, and I accept, that owner's consent has been provided for the Proposed Development application. 1. The Proposed Development has been nominated as Integrated Development as the proposal involves subdivision of bushfire prone land. It requires a Bushfire Safety Authority under s 100B of the Rural Fires Act 1997 (the RF Act). 2. The Proposed Development has also been nominated as Integrated Development because it requires a controlled activity approval under s 91 of the Water Management Act 2000 for works proposed to be carried out on waterfront land. 3. The appeal comes to the Court pursuant to 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 proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 2 March 2021, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). On the advice of the Parties, a site view was undertaken at the commencement of the conciliation conference. Objector submissions were not taken on site but were received via Microsoft teams. 6. 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 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. The Parties have advised that there are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept, that: 1. clause 7 of SEPP55 requires that the Court consider whether the land is contaminated as part of the assessment of any development application; 2. clause 7(1) of SEPP55 provides as follows: (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. the Applicant has provided an Environmental Site Assessment (ESA) dated 5 June 2019, a Remediation Action Plan (Asbestos in Soil) (RAP) dated 9 July 2019, and an Interim Audit Advice dated 14 August 2019 from an Accredited Site Auditor, Mr Tim Chambers, which found that the amount of asbestos containing material present on the Subject Site is below applicable criteria and does not pose a health risk beyond that expected in a normal Australian urban environment; 2. on the basis of the advice above (at [(a)]to [(c)]), and consistent with the conclusions and recommendations of the ESA and RAP, the land will be remediated before, and made suitable for, the proposed residential use of the Subject Site. 1. the Parties have confirmed, and I accept, that the Applicant's development application (as amended) satisfies all applicable provisions of WLEP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure "A" to this judgment. In particular, the Parties have confirmed, and I accept, that the following provisions of WLEP have been addressed by the Applicant's Proposed Development (as amended) as follows: 1. clause 2.6 provides that land to which the WLEP applies may be subdivided, but only with development consent; 2. the Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of WLEP. The Parties agree that the Proposed Development is compatible with the objectives of the R2 zoning of the Subject Site. The objectives of the R2 zone, to which the Parties have had regard, are as follows: • To provide for the housing needs of the community within a low-density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. clause 4.1 provides minimum lot size requirements for subdivision of land, and in relation to this clause: 1. the objectives of the clause are to control the density of subdivision in accordance with the character of the location, site constraints and available services, facilities and infrastructure and to ensure lots are of a sufficient size and shape to accommodate development; 2. the minimum Lot Size applicable to the Subject Site is 449m2, as shown on the Lot Size Map; 3. the proposed lots within the Proposed Development (as amended) comply with the provisions of this clause; 1. clause 7.1 concerns public utility infrastructure and provides that development consent must not be granted for development on land unless the consent authority is satisfied that public utility infrastructure that is essential for the Proposed Development is available or that adequate arrangements have been made to make that infrastructure available when it is required. The Parties have advised that the application satisfies the requirements of cl 7.1 on the basis of the agreements and recommendations made within: 1. the Subdivision and Engineering Design Joint Expert Report filed 4 February 2021; 2. the Stormwater Engineering Joint Expert Report filed on 5 February 2021; 3. the Applicant's Statement of Environmental Effects; and 4. correspondence from Sydney Water dated 3 May 2018 and Endeavour Energy dated 23 March 2018. 1. clause 7.2 relates to natural resource sensitivity—biodiversity, and requires that the Court may not grant consent to the application unless it is satisfied that the development is consistent with its objectives, and in relation to this: 1. the objectives of this clause are as follows: … to protect, maintain or improve the diversity and condition of the native vegetation and habitat, including: (a) protecting biological diversity of native flora and fauna, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the recovery of threatened species, communities, populations and their habitats. 1. the area of the Subject Site mapped as natural resource sensitivity—biodiversity is shown in green in the following illustration in which the Subject Site is marked out in yellow; 1. the Parties are satisfied that the development is consistent with the objectives of cl 7.2 and is designed, sited and managed to avoid potential adverse environmental impact as it: * avoids direct impacts on the littoral rainforest from the proposal; * includes two Environmental Protections Areas (EPA's) which include the Littoral Rainforest Patch in the south and Barton's Gully in the north. These will be managed in accordance with a Vegetation Management Plan (VMP), which will be registered as covenants on title; * maintains the existing hydrological regime applying to land draining to riparian lands by adjusting the extent of bulk earthworks to stay out of these lands; * avoids the removal of mature trees, where practicable, within proposed Asset Protection Zones (APZ's); * avoids the removal of any hollow-bearing trees on the Subject Site; * minimises impacts to landscape connectivity; * minimises potential construction phase impacts through preparation of a comprehensive Construction Environmental Management Plan; * minimises light spillage through a design for lighting that aims to reduce glare, including glare control measures; * minimises the removal of groundwater away from adjacent vegetation through measures assessed in the Subdivision Engineers and Geotechnical Joint Expert Reports, to be acceptable, including as a fail-safe measure the incorporation of an impermeable barrier into the design of the retaining wall adjacent to the actual littoral rainforest; * mitigates against loss of trees through proposed supplementary plantings of a further 150 canopy trees and 44 street trees, as well as screening and canopy trees along the western boundary. 1. the requirements of cl 7.2 are further satisfied by the production of the updated Biodiversity Development Assessment Report dated February 2021 (for which leave was granted on 22 February 2021) and further amended plans and conditions of development consent. These amendments: * remove a building platform on proposed Lot 15 and consolidate proposed Lot 12 with proposed Lot 13; * reduce remnant tree loss as a result of the design of APZs to the rear of proposed lots 10-13; * re-orientate the proposed Lot 14 building platform so that it is parallel to the boundary of proposed Lot 13 to maximise the area available for the re-vegetated buffer to the littoral rainforest; * establish a 25m re-vegetated buffer adjacent to the littoral rainforest boundaries adjoined by 25m APZ to be managed to minimise edge effects and maximise ecological benefit to the littoral rainforest community; * place a covenant on the littoral rainforest vegetated buffer (land south of the proposed APZ) to be maintained as an environment protection area in perpetuity; * retain Tree 568; * update the Applicant's proposed VMP to include re-vegetation of the littoral rainforest buffer, management of the APZs and imposition of a covenant on title; * move the proposed APZ away from the catchment and results in a 50m distance (25m re-vegetated buffer and 25m managed APZ) between the closest building platform and the edge of the littoral rainforest; 1. clause 7.3 which relates to flood planning, and in relation to which: 1. the clause objectives are: to maintain the existing flood regime and flow conveyance capacity; to enable evacuation from flood prone land; to avoid significant adverse impacts on flood behaviour; to avoid significant effects on the environment that would cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses; and to limit uses to those compatible with flow conveyance function and flood hazard. 1. the Subject Site is mapped as being flood prone land. Pursuant to cl 7.3(3), and prior to the grant of development consent the Court must be satisfied that: (a) all habitable floor levels of the development will be above the flood planning level, (b) the development will not adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, (c) the development will not significantly alter flow distributions and velocities to the detriment of other properties or the environment of the floodplain, (d) the development will not affect evacuation from the land, (e) the development will not significantly detrimentally affect the floodplain environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, (f) the development will not result in unsustainable social and economic costs to the community as a consequence of flooding, (g) if located in a floodway area—the development will not be incompatible with the flow conveyance function of, or increase a flood hazard in, the floodway area. 1. the parties agree, as set out in the Stormwater Engineering Joint Expert Report filed on 5 February 2021 and materials submitted with the Applicant's development application, including the Flood Study prepared by Rienco, that none of the proposed lots are in a flood planning area, and the application (as amended) satisfies the requirements of cl 7.3 of WLEP. 1. clause 7.4 which relates to riparian land, and in relation to which: 1. the objective of the clause is "to ensure that development does not adversely impact upon riparian lands"; 2. clause 7.4(3) provides that: Despite any other provision of this Plan, development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land. 1. the area of the Subject Site mapped as riparian land is shown below as the green line outlined in black, and in which the Subject Site is outlined in yellow: 1. the Parties agree that no work is proposed within the areas of mapped riparian land except for revegetation and vegetation management in accordance with the VMP; 2. the Parties further agree that the proposal is consistent with the provisions of clause 7.4. 1. in relation to the provisions of State Environmental Planning Policy No 44—Koala Habitat Protection (SEPP 44), the Parties have advised, and I accept, that: 1. SEPP 44 applies to specific Local Government Areas (LGAs) across NSW where known koala populations or potential koala habitat occurs, including the Wollongong LGA; 2. SEPP 44 must be considered when a development application is made over land with an area of more than 1 hectare; 3. clause 7 of SEPP 44 requires the Court to be satisfied as to whether or not the land is a potential koala habitat; 4. the Subject Site has been assessed by a person who is qualified and experienced in tree identification, with the results of this assessment documented in the Applicant's Ecology Report included at Appendix E of the Applicant's Statement of Environmental Effects submitted with its development application; 5. an assessment of the tree species present on the site reveals that the Subject Site does not constitute potential (or core) koala habitat, given that tree species identified on the site do not include feed tree species as identified in Schedule 2 of SEPP 44; and 6. the requirements of SEPP 44 have been satisfied and present no jurisdictional barrier to the grant of consent to the Applicant's Proposed Development, as amended. 1. in relation to the provisions of State Environmental Planning Policy Infrastructure 2007 (SEPP Infrastructure), the Parties advise, and I accept, that: 1. SEPP Infrastructure applies to the Applicant's Proposed Development as the Subject Site is located adjacent to a railway line and a classified road, and in particular: 1. clause 85 of SEPP Infrastructure applies to certain development on land that is in or adjacent to a rail corridor; 2. clause 86 applies to a development that involves the penetration of ground to at least 2m on land within 25m of a rail corridor and requires concurrence from the Rail Authority; 3. clause 87 requires the Court to be satisfied that appropriate measures will be taken to ensure that specified LAeq levels are not exceeded at the proposed residential accommodation; 4. clause 101 applies to development with frontage to a classified road; 1. the Parties' proposed conditions of consent (and Transport for NSW General Terms of Approval dated 27 November 2020) require that the Applicant demonstrate that post development stormwater discharge from the site does not exceed the pre-development discharge; 2. concurrence from Sydney Trains was issued on 26 February 2021; 3. the parties proposed conditions of consent reflect the requirement in that concurrence for further information to be submitted to Sydney Trains for its endorsement prior to the issue of a subdivision works certificate; 4. the Parties are satisfied, and I accept, that the requirements of these clauses are consistent with the referral received from Transport for NSW dated 27 November 2020, the concurrence issued by Sydney Trains dated 26 February 2021. It is also consistent with the findings and recommendations of the Geotechnical Engineering Joint Report filed with the Court on 4 February 2021, the Noise Impact Assessment of Subdivision Report prepared by Acoustic Logic dated 25 July 2019, and with the Parties' proposed conditions of development consent. 1. in relation to the provisions of State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP), the Parties have advised, and I accept, that: 1. the Coastal Management SEPP applies as the land is located in the Coastal Zone. The site is mapped as being located within the Littoral Rainforest Area, Proximity Area to Littoral Rainforest, Coastal Environment Area and Coastal Use Area and as such cll 10, 11, 13 and 14 apply; 2. these clauses require the Court to be satisfied in relation to the following matters: 10 Development on certain land within coastal wetlands and littoral rainforests area (4) A consent authority must not grant consent for development referred to in subclause (1) unless the consent authority is satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest. 11 Development on land in proximity to coastal wetlands or littoral rainforest (1) Development consent must not be granted to development on land identified as "proximity area for coastal wetlands" or "proximity area for littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on— (a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or (b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest 13 Development on land within the coastal environment area (2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that— (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 14 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority— (b) is satisfied that— (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, 1. mapped littoral rainforest (solid green) and proximity area to littoral rainforest (green hatching) on the Subject Site, outlined in yellow, are shown below: 1. no development (other than vegetation management in accordance with the Applicant's VMP) is proposed within the mapped littoral rainforest and accordingly the Parties submit that the Court can be satisfied of the matter in cl 10 of the Coastal Management SEPP. Development is proposed in the proximity area to the littoral rainforest, the coastal environment area and the coastal use area; 2. the mapped coastal environment area on the site is shown in blue below, with the Subject Site outlined in yellow: 1. the mapped coastal use area on the Subject Site is shown in pink below, and in which the Subject Site is outlined in yellow: 1. following production of the updated Biodiversity Development Assessment Report (BDAR) dated February 2021 (for which leave was granted on 22 February 2021), as well as the Subdivision and Engineering Design Joint Expert Report filed with the Court 4 February 2021, the Geotechnical Engineering Joint Report filed on 4 February 2021, the Supplementary Ecology Joint Report filed 25 February 2021, and further amended plans and proposed conditions of consent, the matters in cll 11, 13 and 14 of the Coastal Management SEPP have been addressed and I am satisfied that consent can be granted to the Applicant's Proposed Development, as amended; 2. in addition, the Parties have advised that: 1. one of the purposes of the Applicant's VMP is to maintain and manage remnant native forest communities on the Subject Site by reducing the abundance and cover of exotic species, particularly exotic grasses and herbaceous weeds minimising bushfire threat to adjacent properties as well as to the Proposed Development on the Subject Site; 2. there will be negligible impact on the quantity and quality of surface and groundwater flows on and across the Subject Site as there are no earthworks proposed nor other aspects of the Proposed Development that will be undertaken in the portion of the Hospital Gully sub-catchment within the Subject Site that would affect either the quantity or quality of surface or groundwater flows to mapped littoral rainforest communities; 3. mapped areas of littoral rainforest are located above and away from the Proposed Development and there would be no direct stormwater discharges generated into such mapped areas of vegetation. Potential indirect impacts associated with the Proposed Development have been mitigated through appropriate avoidance and mitigation measures set out in the Applicant's BDAR, Construction Environmental Management Plan and VMP documents; 4. the Proposed Development will not significantly impact on the biophysical, hydrological or ecological integrity of mapped littoral rainforest located adjacent to the Subject Site, as demonstrated in the Applicant's BDAR. 1. Finally, cl 15 of the Coastal Management SEPP prohibits the granting of development consent unless the Court is satisfied that the Proposed Development is not likely to cause increased risk of coastal hazards on that land or other land. The Parties have confirmed, and I am satisfied, that geotechnical experts have agreed within their Geotechnical Engineering Joint Report filed on 4 February 2021, and in the production of the Addendum 3.0 Geotechnical Review dated 24 February 2021, that the requirements of cl 15 have been met. 2. on 17 August 2020, the Natural Resources Access Regulator provided its General Terms of Approval and these are included in the Parties' proposed conditions of development consent; 3. the Proposed Development has been notified consistent with the provisions of the provisions of the EP&A Act, and the Environmental Planning and Assessment Regulation 2000, and the Respondent has confirmed that it has considered the submissions received in reaching its agreement with the Applicant. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [11], I agree that 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. I am further 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. 4. 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. 5. 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. 6. The Court orders that: 1. The Applicant is granted leave to amend development application DA-2019/1198 and to rely on the amended documents listed in Condition 1 of Annexure A. 2. Pursuant to section 8.15(3) the Applicant pay the Respondent's costs thrown away by reason of the amendment of the development application in the agreed amount of $12,500. 3. The appeal is upheld. 4. Development Application DA-2019/1198 as amended for the 14 lot subdivision of land and associated road construction, vegetation and drainage works, situated at and known as 630-636 Lawrence Hargrave Drive, Wombarra also known as Lots 9, 10, 11 and 12 in DP 5553 and Lot 1 in DP 214700, and associated works on these lots and lot 1 DP 324842 and lot 13 DP 5553, Coledale, is approved subject to the conditions in Annexure A. ………………………….. M Chilcott Commissioner of the Court Annexure A (2023335, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2021