Land and Environment Court New South Wales Medium Neutral Citation: Hartwig v Shoalhaven City Council [2022] NSWLEC 1097 Hearing dates: 8 December 2021 Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development application no. DA20/2061 seeking consent for the construction of a two storey dwelling containing seven (7) bedrooms each with their own ensuite, carport for 2 vehicle, and swimming pool at 60 Macleay Street, Narrawallee, legally described as Lot 145 DP 718994 is determined by granting consent to the application subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPEAL – residential – building footprint wholly within R2 zone - orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979, s 34, 39 Shoalhaven Local Environmental Plan 2014, cl 2.3, 5.21, 7.1 and 7.3 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 55 - Remediation of Land, cl 7 Cases Cited: SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 IDA. Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649, Category: Principal judgment Parties: Donna Hartwig (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicant) Dr J Smith (Respondent) Solicitors: Planning Law Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/247592 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the actual refusal of a residential development application Development Application No. DA20/2061 seeking consent for the construction of a two storey dwelling containing nine (9) bedrooms each with their own ensuite, a carport, sauna, swimming pool, and 5 plunge pools (the Proposed Development) at 60 Macleay Street, Narrawallee, legally described as Lot 145 DP 718994 (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 8 December 2021. I have presided over the conciliation conference. As at the date of the conciliation conference, the Respondent Council was in caretaker mode and local council elections took place on 4 December 2021. Accordingly, the Respondent was not in a position to enter into an Agreement pursuant to s 34 of the LEC Act as a result of the conciliation conference. Accordingly, the conciliation conference was terminated, and the proceedings were heard before me. 3. The Applicant relies on the Amended Proposed Development in response to the Statement of Facts and Contentions (SOFAC) filed by the Respondent on 21 October 2021 (Ex 1) which effects the following changes: 1. pulls back the development building footprint and all ancillary development within the R2 zone resulting in there being no development proposed within the E2 zone; 2. the plunge pool and all spas have been deleted resolving the characterisation contention; 3. the number of bedrooms is reduced to 7 bedrooms; and 4. The eave of the eastern façade is deleted. 1. The Court heard from resident objectors and I am satisfied that the concerns raised have been addressed. 2. The Applicant relies on the following experts' reports in response to contentions 5 (inner protection zone), 6 (acid sulfate soils) and 7 (flooding): 1. Flora and Fauna Assessment prepared by Lodge Environmental dated 11 November 2021 (Ex E); 2. Report on Acid Sulfate Soil Investigation prepared by Terra Insight dated 19 November 2021 and letter dated 22 November 2021 (Ex D); 3. Flood Assessment Report (Revision 3) prepared by Ashley Bond dated 26 November 2021 (Ex H). 1. The parties rely on four Joint Expert Reports as follows: 1. Town Planning prepared by Anthony Betros for the Applicant, and Julie Hoarder for the Respondent filed 3 December 2021 (Ex 6); 2. Ecological prepared by Jack Talbert for the Applicant, and Nick Skelton for the Respondent filed 3 December 2021 (Ecology JER) (Ex 7); 3. Geotechnical prepared by Karen Gates and Andrew Norris filed 30 November 2021 (Ex 5); and 4. Flooding prepared by Ashley Bond for the Applicant, and Andrew Norris for the Respondent filed 30 November 2021 (Flooding JER) (Ex 4). 1. All contentions contained in the Respondent's Statement of Facts and Contentions (SOFAC) filed 11 October 2021 (Ex 1) have been resolved by the combination of the following: 1. Amended plans (ExB) and documents referred to at para [5] above; and 2. Agreed Conditions of Consent (Ex8) 1. The Applicant provided written submissions and provided further oral submissions regarding contention 5 and the Ecology JER (Ex7, pp 6-7), 2. There are jurisdictional prerequisites that must be satisfied. The parties made submissions identifying the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied which I set out below. 3. The Proposed Development is a BASIX affected development and is subject to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Basix Certificate in the Class 1 Application filed with the Court on 30 August 2021 (Ex A) is required to be updated as a result of the amended Proposed Development. The agreed Conditions of Consent (Ex 8) require an updated BASIX Certificate to reflect the architectural plans listed in Condition 1 as a Deferred Commencement condition. The Respondent referred the Court to the decision of Preston CJ in SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [82]: "I have found that the development approved by the development consent is BASIX affected development. The development application for the development needed to be accompanied by a BASIX certificate but was not. The Council addressed this failure by imposing the deferred commencement conditions to require the lodgment of the relevant BASIX certificate. Apart from remedying the failure to comply with the procedural requirements for development applications in the EPA Act and EPA Regulation, the lodgment of the relevant BASIX certificate will enable operation of the prescribed condition of consent of fulfilment of any commitments listed in the BASIX certificate." 1. The State Environmental Planning Policy No 55 - Remediation of Land requires the consideration of contamination in determining development application pursuant to the terms in cl 7. I have considered the Statement of Environmental Effects in Ex A on page 14 which provides as follows: "Given that the site has remained vacant, with no pervious [sic] use there is no reason to suspect that this property is subject to any contamination. On this basis, the subject site is considered to be suitable for the proposed dwelling house and associated work." 1. There are a number of relevant clauses in the State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) which apply to the Proposed Development. Firstly, pursuant to cl 11 of the Coastal Management SEPP the Site is identified as "Proximity area for coastal" in Fig 7 Extract from Coastal Management SEPP Map with Site outlined in yellow in the Statement of Facts and Contentions (Ex 1) at p 7. 2. Secondly, the Statement of Environmental Effects (SEE) similarly identifies the Site pursuant to cl 13 "Coastal environment area" on p 16 Fig 20 SEE and pursuant to cl 14 "Coastal use area" p 16 Fig 21 SEE. 3. Finally, the Ecology JER and the Flooding JER address the Coastal Management SEPP provisions and conclude that the Proposed Development complies satisfactorily. I accept and am satisfied with these conclusions. 4. The Flood Planning provisions of the Shoalhaven Local Environmental Plan 2014 (SLEP) have been amended during the period between the Class 1 Application was filed and the hearing of the Appeal (cl 5.21 and formerly cl 7.3, SLEP). The Respondent referred the Court to the decision of I.D.A Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434, by Bish C where at [28] she identified that on 14 July 2021, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 had the effect of amending the relevant local environmental planning instruments and in these proceedings, the relevant clause is cl 5.21 of SLEP. The decision of Commissioner Chilcott in Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649, provides at [46] and [47] as follows: "[46] This situation has been considered by my learned colleague Bish C in giving effect to an agreement reached by Parties under s 34 of the LEC Act in the matter of IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 at [28] – [32] (IDA). [47] In IDA, the Commissioner observed (at [30] – [32]) as follows: "[30] However, in submission to the Court, the parties agree that the DA is saved from consideration of the new provision, cl 5.21 in the WLEP, by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006, below: 8 Application of amending orders (1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order. (2) (Repealed) (3) In this clause - amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order. [31] Further to this, the parties agree that Order 2021 or any other legal instrument, does not require the consideration of the now repealed cl 7.2 of the WLEP, because it was not identified in Order 2021. The parties submit that cl 1.8A of the WLEP does not 'save' cl 7.2 for the consideration of the DA, based on the decision of McColl JA, Basten JA and Payne JA in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189. [32] I adopt the agreed position of the parties in their (written and oral) submission, which is the basis of their agreement…." 1. Accordingly, cl 7.3 of the SLEP is to be considered as a matter of public interest (Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649, Chilcott C, at [49]). The experts agree in the Flooding JER that the appropriate level of assessment has been undertaken and that the provisions of cl 5.21 of the SLEP are satisfied in any event (Ex 4). 2. The objectives of the R2 zone have been considered pursuant to cl 2.3(2) of the SLEP and I have referred to pp 19-20 of the SEE which concludes that the Proposed Development satisfied these objectives. The Proposed Development complies with all applicable development standards in the SLEP. 3. Acid Sulfate soils is dealt with in cl 7.1 of the SLEP where the objective of this clause is to ensure that development does not disturb, expose, or drain acid sulfate soils and cause environmental damage (cl 7.1(1)). The Site is affected by class 3 where works of more than 1 metre below the natural ground surface is proposed (cl 7.1(2)). An assessment of the soil has been undertaken and contained in an Acid Sulfate Soil Report (Ex D) and the Applicant has tendered an Acid Sulfate Soil Management Plan (Ex J) which satisfies the jurisdictional prerequisite of cl 7.1(3) of the SLEP. 4. Finally, in relation to the provisions of the Biodiversity Conservation Act 2016 (BC Act), the Applicant relies on the agreement reached between the expert ecologists on p 7 of Ex7 as follows: "The experts agree that the dwelling proposal including an up to a maximum of 17m wide IPA (APZ), with the recommended ecological conditions of consent, removal of the 2 small houses […] and the cessation of slashing of the land to the north of the IPA, the retention of the trees not specified in this report for removal, the installation of bollards delineating the extent of the IPA (APZ) and a Bushland Management Plan, is an ecological impact that will not result in a significant impact to any Threatened entities listed under the BC Act and would not require a BAM assessment or a BDAR report and there would be no requirement for the Applicant to retire biodiversity credits in accordance with the Biodiversity Conservation Act 2016 (BC Act). […] The experts agree that there needs to be a Bushland Management Plan that describes the limit of the permitted works (e.g. Maintenance of an IPA of up to 17m and the trees allowed to be removed, fuel reduction, fuel load maintenance) and the prohibited works (including: all other trees are required to be retained, protection of all native vegetation north of the 17m IPA (APZ), regular weed control, boundary marking permanent bollards and signage, licences photographic monitoring from 10 fixed locations etc)." 1. For these reasons, I am satisfied that the jurisdictional prerequisites have been satisfied in order for the Court to exercise its functions to determine the appeal and approve the Proposed Development. 2. The Court notes that: 1. The Court, exercising under s 39(2) of the LEC Act, the function of Shoalhaven City Council as the relevant consent authority under cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application DA20/2061 filed with the Court on 30 August 2021 by: 1. amended architectural plans prepared by Smyth and Smyth Architects, project 933, revision E (Ex B); 2. Flora and Fauna Assessment prepared by Lodge Environmental dated 11 November 2021 (Ex E) 3. Report on Acid Sulfate Soil Investigation prepared by Terra Insight dated 19 November 2021 and letter dated 22 November 2021 (Ex D) 4. Flood Assessment Report (Revision 3) prepared by Ashley Bond dated 26 November 2021 (Ex H) 1. The Applicant has uploaded onto NSW Planning Portal the documents listed at [20(1)] on 8 December 2021 and has filed these documents with the Court on 8 December 2021. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development application no. DA20/2061 seeking consent for the construction of a two storey dwelling containing seven (7) bedrooms each with their own ensuite, carport for 2 vehicle, and swimming pool at 60 Macleay Street, Narrawallee, legally described as Lot 145 DP 718994 is determined by granting consent to the application subject to the conditions in Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (361266, 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: 24 February 2022