Land and Environment Court New South Wales Medium Neutral Citation: Ardill Payne & Partners v Tweed Shire Council [2022] NSWLEC 1153 Hearing dates: 21-22 October 2021 and 17 March 2022 Date of orders: 29 March 2022 Decision date: 29 March 2022 Jurisdiction: Class 1 Before: Bish C Decision: See Orders at [77] Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – ecological and biodiversity assessment – land use risk assessment for farmland and residential use conflict Legislation Cited: Biodiversity Conservation Act 2016, ss 6.2, 7.2, 7.4, 7.13 Biodiversity Conservation Regulation 2017, cll 7.1, 7.2 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.15, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Environmental Planning and Assessment Regulation 2021, Sch 6 Land and Environment Court Act 1979, ss 34, 39 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Primary Production) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Tweed Local Environmental Plan 2014 cll 2.3, 2.6, 4.1, 5.10, 5.21, 7.1, 7.2, 7.6, 7.8A, 7.10 Cases Cited: Bailey v Oberon Shire Council [2006] NSWLEC 815 Texts Cited: Buffer Zones to reduce Land use conflict with agriculture – An interim guideline, Department of Primary Industries, November 2018 Department of Natural Resources and Department of Local Government and Planning, Planning Guidelines. Separating agricultural and Residential land uses, Queensland (1997) Grains Research and Development Corporation, Spray Application Manual for Grain Growers, Module 4. Drift management strategies: minimising and managing spray drift risk, (February 2017) Living and Working in Rural Areas – A handbook for managing land use conflict issues on the NSW North Coast, Department of Primary Industries, 2007 NSW Environment Protection Authority, Noise Policy for Industry, 2017 Tweed Development Control Plan 2008 Category: Principal judgment Parties: Ardill Payne & Partners (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: J Smith (Applicant) A Hemmings (Respondent) Solicitors: McCartney Young Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/279065 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 20/0295 by the Tweed Shire Council (the Council) which, as amended, seeks boundary adjustment, drainage works, Torrens title subdivision into 16 lots, and associated earth/civil works on Lot 4 DP 877860 and Lot 6 DP 749384, also known as 59 and 27 Reserve Creek Road, Kielvale (the site). Drainage works are also proposed on Lot 3 DP 877860. 2. For the reasons explained below, the Court is satisfied that the proposed development, as amended, addresses the relevant jurisdictional and merit assessment requirements for the Court to determine to grant consent to the DA under appeal. Background 1. The DA was submitted to Council on 6 May 2020. 2. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. Prior to the hearing, the DA was amended on several occasions. The relevant amendments are described below: 1. In response to a Notice of Motion (NoM) filed by the applicant, on 6 August 2021, leave was granted by the Court to amend the DA, without opposition by the respondent, which essentially changed the number and dimension of subdivided lots. The respondent subsequently amended its Statement of Facts and Contentions (SoFC), filed and dated 30 August 2021. 2. After case management held on 11 October 2021, the Court, without opposition of the applicant, granted leave for the respondent to further amend the SoFC, although this was not filed before the start of the hearing, as the expert reports, specifically for the Land Use Conflict Risk Assessment (LUCRA) expert report, were not yet available. 1. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the hearing commenced by request of the parties without a site view and proceeded via Microsoft Teams. 2. During the hearing, the DA and other documents tendered in evidence was further amended on several occasions. The relevant amendments are described below: 1. Council amended the SoFC, dated 22 October 2021 (Exhibit 22), which the Court had already granted leave to rely on, without opposition of the applicant (except to a new issue relating to biodiversity). The contention relating to biodiversity is addressed below in the judgement. 2. The applicant sought to amend the site plan, to show building envelopes within the amended subdivision pattern (Exhibit U), and which the Court granted leave to rely upon, without opposition from the respondent. 3. The applicant amended the Vegetation Management Plan (VMP), dated 21 October 2021, without opposition of the respondent, and which the Court granted leave to rely on (as Exhibit T). 1. The new contention raised in the amended SoFC (Exhibit 22) goes to a jurisdictional matter that the Court must be satisfied to grant consent to the DA. As the applicant had not considered this issue prior to the hearing, the Court adjourned the proceedings and directed a Biodiversity Development Assessment Report (BDAR) be prepared, and for the ecology experts to provide a supplementary expert report. 2. During the adjournment, numerous documents were filed by the parties in response to case management and NoM. A NoM filed by the applicant, was heard on 7 March 2022, and the Court granted leave to rely on a (amended) BDAR and amended VMP, without opposition of the respondent. 3. At the resumption of the hearing, the parties sought to amend and tender the following documents and plans: 1. The Court granted leave for the respondent to rely on a further amended SoFC, dated 7 February 2022 (Exhibit 24), without opposition of the applicant. 2. The VMP, site plan and subdivision plan were further amended by the applicant, to which the Court granted leave to rely on, without opposition of the respondent. Pursuant to s 8.15(3) of the EPA Act, the respondent sought and the applicant agreed to costs incurred by the amendment of the application. 3. In response to the amended site plan, subdivision plan, BDAR and VMP, the parties tendered amended supplementary expert reports relating to air quality, acoustic and ecology. 1. The Court directed the Council to upload the documents that amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) onto the NSW Planning Portal. (It is noted that the EPA Reg was repealed on 1 March 2021, however, pursuant to the savings provision in Schedule 6 of the Environmental Planning and Assessment Regulation 2021, the previous regulations are required to be assessed for this DA). Proposed development 1. The amended application before the Court is described as relating to: 1. Boundary adjustment between Lot 4 DP 877860 and Lot 6 DP 749384, 2. Drainage works on Lot 3 DP 877860, 3. Torrens title subdivision into 16 lots, specifically; 1. 15 residential lots (proposed Lots 1-6 and 8-16), 2. One drainage lot (proposed Lot 7), 1. Creation of a 35 m buffer between the northern boundary and future dwellings, including a 15 m vegetated buffer and 2 x 10 m cleared areas, 2. Civil infrastructure relating to internal roads, driveways and stormwater drainage works, and 3. Vegetation removal and native vegetation replanting with future management. 1. Based on the amendments made to the DA, the parties agree that the contentions raised by the respondent as described in the SoFC now relied on have been resolved and all jurisdictional requirements are satisfied. 2. Below, as required in my determination to grant consent to the amended DA under appeal, I address the contentions of the SoFC relied on by the respondent, all relevant jurisdictional requirements and the relevant issues raised by residents in objection. The Site 1. The site is an irregular, rectangular shape, located adjacent to existing residential dwellings forming part of Kielvale Village, and which fronts to Reserve Creek Road. These residences form the site's southern boundary. Access to the site is via two entrances, along access handles, from Reserve Creek Road. 2. To the north of the site is farmland, which is currently cropped as sugar cane, and which forms the northern boundary. The western and eastern boundaries of the site are adjacent to large lot rural (residential) dwellings. 3. The total area of the site is 9,965 hectares (Ha). The site currently has a shed in the central portion (within Lot 4 DP 877860), with the remainder of the area generally grassed, and fragmented pockets of trees in the northwest corner. The site also includes a large Moreton Bay Fig tree in the eastern portion. 4. The site is oriented in an east-west elongated shape, with the land surface undulating and having a general fall in slope towards the north. The site generally drains towards the north. 5. The proposed drainage works that support the future residential lots on the site, connect to existing farm drainage with culvert, located north of the site, on Lot 3 DP 87760. Relevant Planning Controls 1. The requirements of the EPA Act are relevant for the Court's consideration to grant consent to the DA under appeal, and specifically the matters as described in s 4.15(1) below: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. The proposed subdivision includes some works associated with the native vegetation (in the north-east corner of the site), to create a vegetation buffer along the northern boundary. The provisions of the Biodiversity Conservation Act 2016 (BC Act) are relevant for the Courts consideration, specifically assessing the potential to significantly affect threatened species, pursuant to s 7.2 of the BC Act, which is a trigger for a biodiversity offset scheme, pursuant to s 7.4. 2. The Biodiversity Conservation Regulation 2017 (BC Reg) supports the implementation of the BC Act. Pursuant to cl 7.2 of the BC Reg, the area of native vegetation cleared relative to the minimum lot size for that land is a threshold consideration for application of the Biodiversity Offset Scheme (BOS), as described below in cll 7.1 and 7.2: 7.1 Biodiversity offsets scheme threshold (section 7.4) (1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the Act if it is or involves— (a) the clearing of native vegetation of an area declared by clause 7.2 as exceeding the threshold, or … (3) If proposed development is or involves the subdivision of land, the subdivision is taken to involve the clearing of native vegetation that, in the opinion of the relevant consent authority or other planning approval body, is required or likely to be required for the purposes for which the land is to be subdivided. Once that clearing has been taken into account, the clearing for the purposes of the subsequent development of the land for which it was subdivided is not to be taken into account when determining whether the subsequent development exceeds the threshold. 7.2 Clearing of area of land that exceeds threshold (1) Clearing of native vegetation is declared by this clause to exceed the biodiversity offsets scheme threshold if the area proposed to be cleared is the area set out in Column 2 of the Table to this clause opposite the minimum lot size applicable to the land to be cleared in Column 1 of that Table. Note— Section 7.4 of the Act provides that any part of development that involves the clearing of native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013) is to be disregarded for the purposes of determining whether proposed development exceeds the threshold. (2) The minimum lot size applicable to any land being cleared is as follows— (a) if an environmental planning instrument under the Environmental Planning and Assessment Act 1979 prescribes a standard minimum lot size in relation to the land on which the proposed development is to be carried out—that minimum lot size, (b) in any other case—the actual size of the allotment of land on which the proposed development is to be carried out. For the purposes of paragraph (a), the standard minimum lot size is the minimum lot size that applies to development generally on the land, and not any different minimum lot size that applies to particular development or in particular circumstances. (3) In the application of the Table to this clause— (a) if the proposed development does not comprise only the clearing of native vegetation—the area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots, and (b) if the proposed development comprises only the clearing of native vegetation—the area of clearing is the total area of proposed clearing— (i) over the lots in the same ownership (unless subparagraph (ii) applies), or (ii) over the lots that are worked or operated as a single property (whether or not they are in the same ownership), and (c) if the land on which the proposed development is to be carried out comprises different areas of land with different minimum lot sizes—the minimum lot size is the smaller or smallest of those minimum lot sizes, and (d) if the proposed development comprises or involves the clearing of more than one patch of native vegetation—the area of clearing is the total cumulative area cleared. (4) The Environment Agency Head is to publish a method (which may include computer programs) to be used for the purpose of calculating the total area of clearing for proposed development. 1. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed by the DA. 2. Pursuant to cl 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience), with respect to contamination, the site must be deemed or made suitable for the proposed (residential) use, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, including contamination assessment reports and amended remedial action plan (RAP), which together with the agreed conditions of consent, address the relevant requirements of the SEPP Resilience with regards to contamination. 3. The site is identified on the 'Koala Development Application Map', therefore must be assessed pursuant to Chapters 3 and 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity). The amended DA relies on an ecological assessment, including a vegetation survey to establish that the site does not currently contain (core) koala habitat, nor has koala activity or (koala) designated trees. The Court is satisfied that the relevant requirements of SEPP Biodiversity are addressed. 4. The State Environmental Planning Policy (Primary Production) 2021 (SEPP Primary) applies across the State. However, the parties agree that the site is not specifically mapped as 'State Significant Farmland', and that there are no specific provisions relevant for the Court's consideration. 5. The proposed subdivision is situated over land zoned RU5 Village, and the proposed drainage works covering part of Lot 3 DP 877860 is zoned RU2 Rural Landscape, pursuant to cl 2.3 of the Tweed Local Environmental Plan 2014 (TLEP). The proposed residential subdivision with associated works is permissible with consent in the zone(s), the relevant objectives of the zone(s) are satisfied and the requirements of relevant provisions including cll 2.6 and 4.1, relating to subdivision and minimum lot size, are addressed. 6. The parties confirm that there is a small portion of the (northern portion of the) site that is below the flood planning level, as mapped in the TLEP. The parties agree that the proposed building envelopes on the residential lots are not located within the area mapped as flood prone. The Court is satisfied that for this proposed subdivision, the relevant flood planning provisions, described in cl 5.21 of the TLEP are addressed. 7. The site is also mapped in the TLEP as being: * underlain by 'Class 5 acid sulphate soils' (ASS), pursuant to cl 7.1, * 'Predictive Aboriginal cultural heritage', pursuant to cl 5.10, and * Within the 'Obstacle Limitation Surface', pursuant to cl 7.8A. 1. The Court is satisfied by the documents that support the amended DA that cll 5.10, 7.1 and 7.8A are addressed. The Court is also satisfied by the amended plans that the relevant provisions (for assessment of the proposed subdivision) relating to earthworks (cl 7.2), stormwater management (cl 7.6) and essential services (cl 7.10) are addressed. 2. The Court is satisfied, for reasons described in this judgment, that the amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the relevant provisions of the TLEP. 3. The Tweed Development Control Plan 2008 (TDCP) is relevant for consideration of the amended DA, and specifically reference: Sections A5 (subdivision); A16 (Tree and Vegetation Preservation); and A19 (Biodiversity and Habitat Management). The Court is satisfied that the amended DA satisfies all relevant provisions and requirements of the TDCP, and that those matters in contention are resolved. 4. In consideration of the amended DA under appeal, the parties draw the Court's attention to the following documents for reference and assessment: * Buffer zones to reduce Land use conflict with agriculture – An interim guideline, Department of Primary Industries, November 2018 (the Interim Guideline), * Living and working in rural areas – A handbook for managing land use conflict issues on the NSW North Coast, Department of Primary Industries, 2007 (the Handbook), * Planning Guidelines. Separating agricultural and residential land uses. Department of Natural Resources and Department Local Government and Planning, Queensland 1997 (the Planning Guidelines), * Noise Policy for industry, NSW Environmental Protection Authority 2017 (the Noise Policy), and * Module 4, Drift management Strategies. Minimising and managing spray drift risk. Grains Research and Development Corporation, Bill Gordon undated (the GRDC Guidelines). Experts 1. The Court was provided with written evidence from the following experts: 1. Planning – Mr Dwayne Roberts for the applicant; and Mr Ian Sinclair for the respondent. 2. Ecology – Messers Adam Gosling and Peter Gray for the applicant; and Mr Michael Banks for the respondent. 3. Agronomy – Mr Daniel Rollinson for the applicant; and Ms Melissa Van Zweiten for the respondent. 4. Acoustic – Mr Michiel Kamphorst for the applicant; and Mr Stephen Gauld for the respondent. 5. Engineering (traffic, water, stormwater, sewer, contamination and earthworks) – Messers Ryan Beavis and Mark Tunks, and Ms Helen Tunks for the applicant; and Messers Grant Malcolmson, Anthony Burnham, Nicholas Darwin and Robert Hanby, and Ms Angie Cousens for the respondent. 6. Air quality - Mr Geordie Galvin for the applicant; and Mr Gary Graham for the respondent. 7. Land Use - Mr Dwayne Roberts for the applicant; and Mr Tim Fitzroy for the respondent. 1. Oral expert evidence was provided in the hearing by the air quality experts. By agreement of the parties and concurrence of the Court, the other listed experts were not called to give oral evidence because the contentions relevant to their expertise had been resolved to the satisfaction of the parties prior to and/or during the hearing, and the Court had no questions based on their joint expert reports, supporting documents to the amended DA and agreed conditions of consent. Resident submissions 1. In response to two periods of notification, consistent with the requirements of the TDCP, the Council received the following in (resident) submissions: * Original DA notified between 20 May 2020 and 17 June 2020 – 26 resident submissions plus a petition signed by 56 residents received by Council. * Amended DA re-notified between 18 August to 1 September 2021 – 19 submissions plus a petition with 55 signatures received by Council. 1. In addition, at the start of the hearing, four residents provided oral submissions to the Court on the amended application (and re-notified) and one written submission. 2. The subsequent amendments made to the plans that support the application during the hearing and in the adjournment, now before the Court in assessment, are considered by the Council to be a positive response to the resident submissions and were not notified. 3. The written submission of all objectors (in response to the notifications of the DA) and those that provided oral/written submission in the hearing are provided in Exhibit 19 and have been assessed by the Court. Does the proposed development (significantly) affect threatened species? 1. The contention of Council as raised in the final amended SoFC (Exhibit 24) explains that due to the extent of works, described as clearing in the area mapped with native threatened species, to create the (vegetative) buffer along the northern boundary of the site, there is potential for this activity to significantly affect threatened species, therefore the amended DA must be supported by a BDAR. 2. The amended application adopts the creation of a Habitat Restoration Zone (HRZ) in the north-west corner of the site, which will form part of the vegetation buffer (along the northern boundary). The application proposes to remove exotic vegetation and to replant more native vegetation in this zone, as described in the amended VMP. 3. The applicant agrees that the DA originally submitted to Council did not rely on a BDAR (or identified clearing of native vegetation). However, as explained by experts during the hearing, due to the extent and proximity of the proposed vegetation buffer, it was accepted that some 'clearing' of this area is required, and which triggers the requirement for a BDAR to support the application. 4. During the adjournment of the hearing, the applicant provided a (amended) BDAR and also sought to amend the VMP to address the relevant requirements of the BC Act and BC Reg. 5. It was explained to the Court, that pursuant to cl 7.1 and 7.2(2)(a) of the BC Reg, a Biodiversity Offset Scheme (BOS) is triggered by the proposed subdivision. 6. The experts agree that the BDAR and VMP relied on by the amended DA, together with conditions of consent, which described the credits associated with the BOS, address the relevant requirements of the BC Act and BC Reg. 7. The Court is satisfied that the amended BDAR was prepared pursuant to s 6.12 of the BC Act. The creation of a HRZ over the area to protect and re-establish native vegetation is accepted as appropriate by the experts and the Court, which is managed in the amended VMP. 8. The retirement of sufficient credits is agreed by the experts as sufficient, as described in the agreed conditions of consent. With regards to the retirement of biodiversity credits, the Court accepts the proposed assessment, based on the evidence of the experts, to reduce the number of credits to be retired, as specified in the conditions of consent, pursuant to s 7.13(4) of the BC Act and s 39 of the LEC Act. It is accepted that the application does not propose to specifically remove native vegetation, rather to re-plant and enhance this asset in the designated HRZ. 9. The Court is satisfied that the application, as amended and supported by agreed conditions of consent, satisfies the relevant requirements or the BC Act and BC Reg. 10. The amended application before the Court has considered and also addresses the relevant matters to satisfy s 4.15(1) of the EPA Act, specifically s 4.15(1)(b) to minimise environmental impacts. Is there sufficient information to inform the land use conflict assessment and mitigate any identified potential adverse impacts/risks? 1. The Council contended that the DA was not supported by sufficient information to accurately address potential land use conflicts to future residents of dwellings on the site, arising from surrounding agricultural land use. The Council considered that the application did not rely on an accurate and reliable LUCRA, to inform appropriate mitigation strategies and protect future residents on the site, specifically relating to air quality and acoustic issues. 2. Council initially assessed that the proposed subdivision and any future residential development (not the subject of this DA) on the site posed an unacceptable risk, because the amended DA did not sufficiently: mitigate the harm to human health (as a sensitive receptor); protect amenity of future residents; and/or address the potential for adverse constraint on adjoining agricultural lands. 3. I accept that the LUCRA report relied on by the experts is prepared in consideration of the Handbook and Appendix E of the TDCP, as well as the Planning Guidelines with respect to air quality impacts, and the Noise Policy to assess noise impacts. 4. I understand from the experts that there are two key steps to assessing the land use conflict risk associated with the proposed subdivision on the site, being: firstly, define the activity/hazard, and rank the acceptability of the risk; and secondly, identify any appropriate mitigation strategies which could reduce the assessed risk to a level that is deemed as acceptable (risk ranking). 5. Based on the plans and documents that support the amended application, together with the agreed conditions of consent, I understand that the experts now agree that the agricultural activities that could cause air quality and acoustic impacts to future residents of the site have been properly assessed and are sufficiently mitigated to resolve this contention. 6. In assessment of the expert evidence and documents that support the amended DA, it is understood that the primary difference between the experts related to: the noise of tractors and sprayers; and the aerial extent/impact of chemicals, specifically pesticides. The mitigation strategies considered by the experts focused on protecting human health and ensuring the well-being(amenity) of future residents of the site. 7. The experts agree that the crop scenarios and activities adopted by the LUCRA are relevant and appropriate to the site context, consistent with the advice of the agronomy experts. 8. Having assessed the evidence before me, I accept that the LUCRA relied on by the amended DA, has been prepared with sufficient information to identify and inform the assessment of land use conflict risks associated with the proposed subdivision on the site (for future residential development) and its relationship with the use of adjoining agricultural land. I accept the risk assessment provided in the LUCRA report. 9. I am satisfied that the LUCRA has identified the relevant activities, assessed the associated risks, and sufficiently mitigated the identified risks to an acceptable level for this application, consistent with (future) residential development on the site. I am also satisfied that the sensitive receptor, being future residents on the site, are capable of being adequately protected from adjoining agricultural practice, primarily by the vegetative buffer and proposed conditions of consent. I am therefore satisfied that the proposed subdivision will not cause adverse and unnecessary conflict with the surrounding agricultural land use. 10. I adopt the opinion of his Honour Moore C in Bailey v Oberon Shire Council [2006] NSWLEC 815 at [51], whereby I must assume that the agricultural activities of the adjoining lands will be conducted in a lawful and safe manner. The agreed mitigation strategies, described in the amended DA and agreed conditions of consent, rely on this premise, and seek to address any unforeseen or unplanned circumstances, such as weather changes or poor practice. 11. I am satisfied that based on the evidence before the Court and the agreed conditions of consent to be attached to the consent, this contention is resolved. The relevant requirements of the TDCP, Handbook and Planning Guidelines are addressed, and relevant matters of consideration in s 4.15(1) of the EPA Act are satisfied. 12. I note that there are no specific jurisdictional requirements for the design of a buffer on the site. I am satisfied that the experts have considered the sufficiency of the buffer area and vegetation type in their consideration to reduce risk for future residents. This buffer could potentially also provide a positive outcome for existing residents of Kielvale, whom have expressed concern on the transmittal of spray. 13. Based on the assessment of the evidence before the Court, I am satisfied that the amended application considers and addresses the matters relevant to s 4.15(1)(a)(ii), and that the site is suitable for the amended application, pursuant to s 4.15(1)(c) of the EPA Act. The proposed subdivision, as described to the Court, also sufficiently addresses s 4.15(1)(b) of the EPA Act. Adequate services and infrastructure to support application? 1. The contentions of Council on the provision of adequate services and infrastructure, primarily refer to insufficiency of information to assess the DA. The contentions relate to: road/driveway design and access within the site; stormwater flow through and beyond the site; and on-site sewage design. 2. Based on the amended plans and documents that support the DA, together with the agreed conditions of consent, the parties agree and the Court concurs that the contentions relating to provision of essential services and infrastructure to support the proposed subdivisions are resolved. The applicant has provided the relevant information to inform and satisfy the Court in assessment of the amended application. 3. I am satisfied that the relevant provisions of the TLEP and TDCP are addressed, pursuant to subss 4.15(1)(a)(i) and (ii) of the EPA Act. Have the resident objections been assessed and are sufficiently addressed? 1. The residents have had the opportunity during two periods of notification to provide written submissions on the original DA and after amendment. These written submissions are tendered in evidence to the Court for consideration. 2. In addition, four (4) residents gave oral submission plus one written submission at the start of the hearing, and the Court was also showed a video of activity on the adjoining agricultural land. These oral submissions, together with the video were submitted in evidence for assessment by the Court. 3. Several residents of Kielvale explained the historic impacts to their wellbeing and lifestyle from smoke and aerial spraying from the northern agricultural land. I accept, based on the visual and oral evidence submitted to the Court that there likely have been occurrences of spray and smoke that have drifted across Kielvale residences. These incidences are not a consequence of the proposed subdivision in application before the Court. 4. As explained previously, I do not consider that the site is 'unsuitable', pursuant to s 4.15(1)(c) of the EPA Act, particularly because any adverse events from adjoining agricultural land have been appropriately mitigated and are a matter of licence compliance. 5. I am satisfied that the residents have had opportunity to address the Court, and that the issues raised by residents have been considered. The matters relevant to subss 4.15(1)(a)(ii), (d) and (e) of the EPA Act are addressed. Conditions 1. I adopt the conditions of consent agreed by the parties, as described in Exhibit 30. 2. Based on the findings described above, I hereby grant conditional consent to the DA as amended, pursuant to s 4.16(1)(a) of the EPA Act, and impose conditions described in Annexure A, pursuant to s 4.17(1) of the EPA Act. Conclusion 1. The amended application has been assessed, based on the evidence before the Court, including the DA's (amended) supporting plans, documents, agreed conditions of consent and expert reports. I have also considered the submissions of residents, as relevant to the site and application. 2. After consideration of the evidence before the Court, I am satisfied that DA 20/0295 sufficiently addresses the relevant jurisdictional and merit assessment requirements, as specifically established in the EPA Act, BC Act, EPA Reg and BC Reg. The relevant environmental planning instruments are addressed, the site is suitable for the proposed subdivision and any environmental impacts have been minimised. 3. The development consent for DA 20/0295 is determined as granted, pursuant to s 4.16(1)(a) of the EPA Act. Orders 1. The Court notes that: 1. The Tweed Shire Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to amending the application for development consent (DA 20/0295) and uploading to the NSW Planning Portal. 2. That the Tweed Shire Council has uploaded the amended application on the NSW planning portal on 18 March 2022. 3. That the applicant has filed the amended application consistent with documents tendered in evidence and granted leave by the Court. 1. Consequently, the orders of the Court are as follows: 1. The appeal is upheld. 2. Development consent for Development Application DA20/0295 seeking boundary adjustment, drainage works, Torrens title subdivision into 16 lots and associated earth/civil works on Lot 4 DP 877860 and Lot 6 DP 749384, also known as 59 and 27 Reserve Creek Road, Kielvale, and Lot 3 DP 877860, is determined by the grant of consent, subject to the conditions in Annexure A. 3. The applicant is to pay the respondents costs thrown away as a result of the amendments of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. ……………………. Sarah Bish Commissioner of the Court Annexure A.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: 29 March 2022