Land and Environment Court New South Wales Medium Neutral Citation: Platform Project Services Pty Ltd v MidCoast Council [2022] NSWLEC 1126 Hearing dates: Conciliation conference on 19 November 2021, 15 December 2021, 31 January 2022, and 25 February 2022 Final agreement filed 24 February 2022 Date of orders: 10 March 2022 Decision date: 10 March 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA2021/1080 and rely on the amended plans and documents listed at Condition 1 of Annexure A. (2) Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. (3) The appeal is upheld. Consent is granted to Development Application DA2021/1080 for a multi-dwelling housing development comprising three, two-storey townhouses on land described as Lot 90 in DP200167 and known as 157 Boomerang Drive, Boomerang Beach NSW, subject to the conditions of consent contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing development – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 2.22, 4.15, 4.16, 8.15, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Great Lakes Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 7.1, 7.2 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: Platform Project Services Pty Ltd (Applicant) MidCoast Council (Respondent) Representation: Counsel: A Sattler (Solicitor) (Applicant) T Pickup (Solicitor) (Respondent) Solicitors: Sattler and Associates Lawyers (Applicant) Local Government Legal (Respondent) File Number(s): 2021/238332 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 DA2021/1080 (the DA) by MidCoast Council (the Respondent). The DA sought consent for a multi-dwelling housing development comprising three, two-storey townhouses on land described as Lot 90 in DP 200167, and known as 157 Boomerang Drive, Boomerang Beach (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 19 November and 15 December 2021, and 31 January 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Whilst the amended DA remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions initially raised by the Respondent, which in turn relate primarily to site suitability, vehicle access and safety, scale and character, amenity impacts upon neighbouring properties, extent of earthworks and streetscape impacts, amongst other contentions. 6. Of note, the amended DA has been reconfigured to facilitate site access to the northern boundary and has been reconfigured to more closely reflect the anticipated future form of development in the immediate vicinity. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The original DA was notified on 5 February 2021 and the Respondent received 8 submissions. Subsequently, revised plans were provided to the Respondent and were re-notified on 3 June 2021 raising a further 11 submissions in response. These submissions raised a number of concerns as set out within the Statement of Facts and Contentions accompanying this matter. 11. During an adjournment of the conciliation conference, the Respondent further notified the final amended DA and one submission was received in response. 12. The parties agree, and I am satisfied, that mandatory community consultation requirements set out at s 2.22 of the EPA Act have been met. 13. Further, the parties agree, and I am satisfied, that the submissions of objectors are a relevant consideration under s 4.15(1)(d) of the EPA Act and have been taken into account in the assessment of the final amended DA. 14. The parties agree, and I am satisfied, that the Great Lakes Local Environmental Plan 2014 (GLLEP) is a relevant environmental planning instrument. The site is zoned R2 Low Density Residential and the final amended DA - characterised as multi-dwelling housing - is permissible with consent. 15. The parties agree, and I am satisfied, that cl 2.3 of the GLLEP, requiring the consent authority to have regard to the objectives of the R2 zone, has been met by the final amended DA. Those objectives include to provide for the housing needs of the community within a low-density residential environment, and to enable other land uses that provide facilities or services to meet the day to day needs of residents. 16. The parties agree, and I am satisfied, that all principal development standards of the GLLEP have been met by the proposal, and specifically that the final amended DA conforms with the principal development standards set out at cl 4.3 - Height of Buildings - and cl 4.4 - Floor Space Ratio. 17. The parties agree, and I am satisfied, that those matters set out in cl 7.1 - Acid sulfate soils - of the GLLEP have been adequately addressed. It is noted that a preliminary Acid Sulphate Soils Assessment has been prepared for the proposed development. Field screening of soil samples has demonstrated that potential or actual acid sulfate soils material is not present within the proposed development area of the site. Based on these results, the parties agree no further investigations or soil management measures are considered necessary. 18. The parties agree, and I am satisfied, that matters set out in cl 7.2 - Earthworks - of the GLLEP have been adequately addressed. It is noted the final amended DA will involve excavation in the eastern portion of the site and the western portion of the proposed development will require imported fill to construct a level building platform. In addition, retaining walls are proposed along the rear and side boundaries of the site. An Erosion and Sediment Control Plan is included within the DA documentation. Conditions of consent are imposed to ensure compliance with this document. 19. The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The Applicant has provided a geotechnical report, prepared by Qualtest Laboratory NSW Pty Limited. The report concludes the site can be made suitable for the proposed residential land use, subject to the implementation of recommendations of the report. As such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed. 20. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). An amended BASIX certificate No. 1266484M, dated 14 December 2021 has been provided by the Applicant, which confirms the final amended DA meets sustainability requirements. Conditions of consent are imposed to ensure compliance with the BASIX certificate. 21. 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. 22. The Court notes that: 1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent. 2. The amended DA was uploaded to the NSW Planning Portal on 23 February 2022. 3. The Applicant has filed the amended DA with the Court on 24 February 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA2021/1080 and rely on the amended plans and documents listed at Condition 1 of Annexure A. 2. Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. 3. The appeal is upheld. 4. Consent is granted to Development Application DA2021/1080 for a multi-dwelling housing development comprising three, two-storey townhouses on land described as Lot 90 in DP200167 and known as 157 Boomerang Drive, Boomerang Beach NSW, subject to the conditions of consent contained at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A.pdf Final Architectural Plans.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: 10 March 2022