Land and Environment Court New South Wales Medium Neutral Citation: Mascaro v Shoalhaven City Council [2021] NSWLEC 1450 Hearing dates: Conciliation conference on 5 May, 27 May, 16 June and 19 July 2021, final agreement filed 26 July 2021 Date of orders: 6 August 2021 Decision date: 06 August 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) The Applicant is granted leave to amend development application DA20/1579 and rely upon the plans and documents listed at Annexure 'A'. (2) The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The appeal is upheld. (4) Consent is granted to development application DA20/1579 for the demolition of existing structures on site and construction of a 3 storey shop top housing development, comprising 15 residential apartments above 2 retail/business premises and 35 car parking spaces (25 x residential, 8 x commercial and 2 x visitor parking spaces), on land identified as Lot 45 in DP1052512, also known as 42 Naval Parade Erowal Bay, subject to the conditions in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – shop-top development – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, ss 7.2, 7.7 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Shoalhaven Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 7.1, 7.20 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 Texts Cited: Apartment Design Guide Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: Michael Mascaro (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: A Kelly (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Foundation Law Group (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/313821 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA20/1579 (DA) by Shoalhaven City Council (the Respondent). The DA sought consent for demolition of existing structures and construction of a three storey shop top housing development with two ground floor business premises, 17 apartments and communal open space, and with at-grade parking for 40 vehicles and one motorcycle on land identified as Lot 45 in Deposited Plan 1052512 and known as 42 Naval Parade, Erowal Bay (the site). 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 5 May, 27 May, 16 June and 19 July 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, the matter was conducted by Microsoft Teams. 4. Prior to the conciliation conference, the Applicant prepared a set of amended plans on a without prejudice basis, to amend the proposal in an attempt to resolve the contentions raised by the Respondent. These plans were further amended during the course of the conciliation conference. 5. At the conclusion of the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to the final amended proposal, subject to conditions. 6. Whilst the final amended proposal remains largely consistent with the original DA, a series of amendments cumulatively resolve the contentions raised by the Respondent, which in turn relate primarily to building height, built form, character, internal amenity, landscape design and design quality amongst other contentions. 7. In summary, the agreed amendments have the effect of reducing the maximum height of the proposal, increasing the set back to the eastern boundary, increasing upper level set backs generally, increasing the provision of deep soil, rearranging the proposed parking, and a reduction in the total number of apartments to resolve earlier contentions raised by the Respondent. 8. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard, I am satisfied the DA was made with the consent (in writing) of the owners of the site, being the Applicant in these proceedings. 11. The parties agree, and I am satisfied, the Shoalhaven Local Environmental Plan 2014 (SLEP) is a relevant environmental planning instrument. The site is zoned B2 Local Centre, and the final amended proposal, characterised as shop top housing, is permissible with consent. 12. I am satisfied the final amended proposal meets the B2 zone objectives set out at cl 2.3 of the SLEP because it provides retail or business uses and encourages employment opportunities in an accessible location. 13. The amended proposal is consistent with all relevant development standards set out within the SLEP, specifically height of buildings at cl 4.2(2A), which sets out a maximum height of building of 11m for the site, and floor space ratio at cl 4.4(2), which sets out no floor space ratio for the site. 14. Clause 7.1 of the SLEP - Acid sulfate soils - sets out a series of considerations regarding development with a potential to disturb acid sulfate soils. The final amended proposal is situated on land classified as Class 5, however the parties agree and I am satisfied, the final amended proposal will not cause the water table to be lowered below 1 metre Australian Height Datum satisfying the requirements of this clause. 15. Clause 7.20 of the SLEP - Development in the Jervis Bay region - sets out a series of considerations regarding development in the vicinity of certain natural and cultural features of the Jervis Bay region. The site is identified as land within the Jervis Bay region, however: 1. The site is not in a coastal sand dune area, on a rocky headland or on a flat, well drained area along a major creek line and as such cl 7.20(3) of SLEP does not prevent the consent authority from granting consent to the proposal. 2. The site is not located in the vicinity of the Point Perpendicular lighthouse group, and as such cl 7.20(4) of SLEP does not prevent the consent authority from granting consent to the proposal. 3. The site is not in the vicinity of the Huskisson Tapalla Point rock platform and as such cl 7.20(5) of SLEP does not prevent the consent authority from granting consent to the proposal. 4. The site is not identified as "Biodiversity Habitat Corridor" on the Terrestrial Biodiversity Map and as such cl 7.20(6) of SLEP does not prevent the consent authority from granting consent to the proposal. 5. The proposal does not involve a public utility undertaking, or a public or private access road through land identified as "Biodiversity Habitat Corridor" on the Terrestrial Biodiversity Map and as such cl 7.20(7) of SLEP does not prevent the consent authority from granting consent to the proposal. 6. The site is not identified as "Disturbed habitat and vegetation Cl 7.20" on the Terrestrial Biodiversity Map and as such cl 7.20(8) of SLEP does not prevent the consent authority from granting consent to the proposal. 7. The proposal does not involve "tourist and visitor accommodation and ancillary facilities" and as such cl 7.20(9) of SLEP does not prevent the consent authority from granting consent to the proposal. Consequently, I am satisfied cl 7.20 has been appropriately considered. 1. I am satisfied State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The Applicant has submitted a detailed site investigation report, prepared by Terra Insight and dated 8 April 2020, which confirms the investigation has not identified contaminants at a level which would preclude residential development of the site. Additionally, the Respondent has undertaken an inspection of the site to satisfy itself the site is suitable for the proposed development. As such, the parties agreed and I am satisfied cl 7 of SEPP 55 has been appropriately addressed. 2. I am satisfied State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) is an additional relevant environmental planning instrument. A Design Verification Statement prepared by Mr Angelo Di Martino architect (NSW Architects Registration Board registration number 7608) has been provided in support of the final amended proposal, fulfilling the necessary requirements of SEPP 65. Additionally, the parties agree and I am satisfied, that the final amended proposal has appropriately resolved the Respondent's earlier contentions regarding design quality, internal amenity and other aspects of design addressed in the Apartment Design Guide. 3. I am satisfied State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) is an additional relevant environmental planning instrument. I am satisfied the Applicant has submitted an amended BASIX Certificate, number 1090622M_03, and dated 12 July 2021 in satisfaction of SEPP BASIX. Agreed conditions of consent require implementation of the BASIX commitments. 4. I am satisfied State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP) is an additional relevant environmental planning instrument. The site is located in the Coastal Zone and as such cll 13 and 14 of the Coastal SEPP apply. The parties agree and I am satisfied the site is at a sufficient distance from the foreshore to have no material impact on any foreshore, surf zone, beach, headland or rock platform. Stormwater drainage plans have been prepared for the final amended proposal. The site will drain to the street and connect into the civil drainage network. For these reasons, I am satisfied the matters set out at cll 13 and 14 of the Coastal SEPP have been adequately considered. 5. I am satisfied the Biodiversity Conservation Act 2016 (BC Act) establishes a further relevant jurisdictional prerequisite to the grant of any consent in this matter. In this regard, ss 7.2 and 7.7 require that the final amended proposal be accompanied by a biodiversity development assessment report (BDAR) if the development exceeds the biodiversity offsets scheme threshold. 6. The final amended proposal includes the removal of existing planted landscape. The parties agree and I am satisfied, this landscape comprises mostly ground cover located on the northern and eastern portions of the site, with scattered plants and trees. A biodiversity offset scheme entry threshold (BOSET) report has been prepared and submitted with the application. This report indicates that the area of impact is below the clearing threshold and does not trigger the need for biodiversity offsets or further assessment. Consequently, no BDAR is required to accompany the DA. 7. In accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent, and in considering submissions from objectors, the final amended proposal is in the public interest. 8. Finally, I am satisfied that granting consent to the DA does not result in any contravention of the EPA Act or any relevant environmental planning instrument. As such the Court, exercising its function under s 4.16(1) of the EPA Act grants consent to the DA subject to conditions. 9. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend development application DA20/1579 and rely upon the plans and documents listed at Annexure 'A'. 2. The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is upheld. 4. Consent is granted to development application DA20/1579 for the demolition of existing structures on site and construction of a 3 storey shop top housing development, comprising 15 residential apartments above 2 retail/business premises and 35 car parking spaces (25 x residential, 8 x commercial and 2 x visitor parking spaces), on land identified as Lot 45 in DP1052512, also known as 42 Naval Parade Erowal Bay, subject to the conditions in Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (275012, pdf) Architectural Plans (8338427, pdf) Landscape Plans (1759392, 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: 06 August 2021