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Land and Environment Court
New South Wales
Medium Neutral Citation: Meineke v Lismore City Council [2022] NSWLEC 1324
Hearing dates: Conciliation conference on 17 June 2022
Date of orders: 23 June 2022
Decision date: 23 June 2022
Jurisdiction: Class 1
Before: Chilcott C
Decision: Orders – see [16].
Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Biodiversity Conservation Act 2016, ss 1.5, 7.3, 7.4, 7.7, 7.13
Biodiversity Conservation Regulation 2017, cll 7.1, 7.3
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.14
Environmental Planning and Assessment Regulation 2000, cll 55, 77
Land and Environment Court Act 1979, s 34
Lismore Local Environmental Plan 2012, cll 2.3, 2.6, 4.1, 5.10, 5.21, 6.1, 6.2, 6.4
Roads Act 1993, s 138
Rural Fires Act 1997, s 100B
State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 4.16
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy (Koala Habitat Protection) 2020, Pt 3, cl 10
State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 18
State Environmental Planning Policy No 55 - Remediation of Land, cl 7
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
State Environmental Planning Policy (Transport and Infrastructure), cl 2.118
Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022)
Lismore Council, Comprehensive Koala Plan of Management for south-east Lismore (February, 2013)
NSW Rural Fire Service, Planning for Bushfire Protection - a guide for councils, planners, fire authorities and developers (November, 2019)
Category: Principal judgment
Parties: Graham Peter Meineke trading as GM Project Development and Management (Applicant)
Lismore City Council (Respondent)
Representation: Counsel
A Hemmings (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Holding Redlich (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2021/44443
Publication restriction: No
Judgment
1. COMMISSIONER: Graham Peter Meineke, trading as GM Project Development and Management, (the Applicant) has appealed the refusal of Lismore City Council (the Respondent) of its Development Application No. DA19/438 made with owner's consent for the Torrens title subdivision of land, extension of Greenwood Drive, associated infrastructure (including bulk earthworks and creation of a detention basin) and associated works at 658 Ballina Road, Goonellabah (Lots 4 in DP406893) (the Subject Site).
2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.
3. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Proposed Development was notified between 19 December 2019 and 29 January 2020, and 8 submissions were received in response to that notification.
4. On 25 March 2022 the Court granted leave for the Applicant to rely on the amended plans and other documents, and on 1 April 2022, the Applicant lodged the amendments to its development application on the NSW Planning Portal. The Applicant's amended plans and other documents resolved contentions in relation to the impact of the proposed Development on koalas, and in relation to tree removal, geotechnical engineering, earthworks and road design and layout contentions.
5. The Applicant's amended plans and other documents were notified by the respondent between 28 April 2022 to 13 May 2022 and a further six submissions were received in response to that notification.
6. On 17 June 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.
7. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection was undertaken prior to the conciliation conference as one objector provided a submission during the site view.
8. At the conciliation conference, undertaken via Microsoft Teams, 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.
9. Under s 34(3) of the Land and Environment Court Act 1979 (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.
10. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to Applicant's Development Application, and those requirements have been satisfied as follows:
1. the Proposed Development is integrated development under s 4.46 of the EP&A Act as Ballina Road is a classified road, and:
1. the Applicant's development application seeks consent for an access road connected to Ballina Road, requiring approval under s 138 of the Roads Act 1993, and in relation to this:
1. the Applicant's development application, as amended only proposes access to one lot (lot 1) off Ballina Road, consistent with the existing situation on the Subject Site; and
2. the Applicant's development application, as amended, was referred to Transport for NSW (TfNSW), and on 21 April 2022, the Parties have confirmed that the following response received from Matt Adams, Team Leader of Development Services, at TfNSW), in response to the referral:
"I note the proposed plan of subdivision has been further amended so that only proposed Lot 1 will have frontage and direct vehicular access to Ballina Road (the Bruxner Hwy - State HW16). This outcome will result in no net increase in existing vehicular access demand to the classified road.
Noting that the existing residential dwelling will be within proposed Lot 3 and will have access to Greenwood Drive, I understand that any future dwelling on proposed Lot 1 will require Council approval and would require a driveway compliant with Council's current standard access drawings.
Noting that a driveway connection as referred to in s.138(1)(e) exists, TfNSW would consider providing concurrence pursuant to S138(2) of Roads Act 1993 for any works or structures required to relocate and/or install a driveway consistent with Council's standard drawings. Design drawings are typically required to inform TfNSW concurrence. Consideration should be given to the relocating any driveway upgrade as far as practicable from the roundabout to minimise conflict with vehicles leaving the roundabout and with the existing neighbouring property access."
1. the Subject Site is mapped as bushfire prone land (part vegetation category 1, part vegetation buffer), and accordingly a bushfire safety authority is required under s 100B of the Rural Fires Act 1997, and in relation to this:
1. the NSW Rural Fire Service (NSW RFS) has issued general terms of approval (GTAs) and a bushfire safety authority on 31 January 2020 for the Proposed Development;
2. the GTAs issued on 31 January 2020 have been superseded by the amended plans and are no longer relevant to the Proposed Development, as amended; but
3. on 29 April 2022, the development application (as amended) was formally referred via the NSW Planning Portal to the NSW RFS and on 9 June 2022, the Parties have advised that the solicitor for the Respondent spoke with Alan Bawden, a Supervisor – Development Assessment and Planning ,at the NSW RFS who advised the Respondent that the NSW RFS did not intend to issues revised GTAs in relation to the Proposed Development, as amended, and that the NSW RFS would rely on the advice of the Parties' bushfire experts in relation to the assessment of potential bushfire impacts;
4. the above advice was confirmed by the NSW RFS in an email received from RFS on 9 June 2022; and
5. the Parties have confirmed, and I am satisfied, that, on the basis of the advice of the Applicant's bushfire expert, the development application, as amended, complies with the requirements for Planning for Bushfire Protection 2019 (PfBP), or that it provides an acceptable performance solution as an alternative to the provisions of PfBP; and
6. pursuant to s 8.14(4)(c) of the EP&A Act, and noting the advice of the Parties above, I am satisfied that the Appeal can be determined even though the development consent granted as a result of this appeal may be inconsistent with the original GTAs issued by the NSWW RFS in relation to a previous iteration of the Proposed Development;
1. in relation to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) (incorporating the provisions of the former and now repealed State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure)):
1. on 29 April 2022, the Applicant's development application (as amended) was referred to TfNSW via the NSW Planning Portal and TfNSW provided a response the referral on 8 June 2022;
2. on the basis of the response from TfNSW, the Parties have confirmed, and I am satisfied, that, consistent with the provisions of cl 2.118 of the SEPP T&I:
1. the safety, efficiency and ongoing operation of the classified road, that is Ballina Road, will not be adversely affected by the Proposed Development, other than in relation to one lot, because practicable and safe, vehicular access to the Subject Site is provided by a road other than a classified road; and
2. in relation to the proposed access from one lot (being proposed Lot 1), the access provided via the classified road replicates the single access point currently available to the Subject Site from the classified road;
3. the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road;
4. on the basis of the above, the provisions of cl 2.118(2) of SEPP T&I are satisfied;
1. the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) (incorporating the provision of the former, and now repealed, State Environmental Planning Policy (Koala Habitat Protection) 2021) (Koala SEPP 2021)), came into effect on 1 March 2022; and
1. clause 4.16 of SEPP B&C states that "a development application made in relation to land, but not finally determined before this Chapter applied to the land, must be determined as if this Chapter had not commenced in its application to the land", and so the Applicant's development application in the current appeal is subject to the provisions of Koala SEPP 2021;
2. Koala SEPP 2021 commenced operation on 17 March 2021 and aims to encourage the conservation and management of areas of natural vegetation that provide habitat for koalas to support a permanent free-living population over their present range and reverse the current trend of koala population decline.
3. Notwithstanding that it was operational at the time of this appeal, cl 18 of this SEPP, provides that:
"18 A development application made in relation to land, but not finally determined before this Policy applied to the land, must be determined as if this Policy had not commenced in its application to the land."
1. Consequently, Koala SEPP 2021 has no application in the determination of this appeal, and the Applicant's development application is subject to the provisions of the previous instrument concerning koalas and protection of koala habitat being State Environmental Planning Policy (Koala Habitat Protection) 2020 - version applicable on 16 March 2021 - (Koala SEPP 2020), and in relation to this the Parties agree, and I am satisfied, that:
1. the Subject Site does contain core koala habitat for the purposes of SEPP Koalas 2020; and
2. the Lismore Comprehensive Koala Plan of Management by Birdwing Ecological Services, dated 20 July 2021 has been prepared pursuant to the provisions of Part 3 of Koala SEPP 2020 and applies to the Subject Site; and
3. the Proposed Development as amended, is consistent with the Lismore Comprehensive Koala Plan of Management as required under cl 10 of Koala SEPP 2020, and can be determined by the grant of consent;
1. the Proposed Development includes the removal of vegetation on land identified on the Biodiversity Values Map published under cl 7.3 of the Biodiversity Conservation Regulation 2017 (BC Regulation) (and called up under s 1.5(2)(c) of the Biodiversity Conservation Act 2016 (BC Act)), and in relation to this:
1. consistent with the provisions of cl 7.1(1)(b) of the BC Regulation, that Proposed Development, as amended, exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the BC Act as it involves the clearing of native vegetation on land included on the Biodiversity Values Map;
2. accordingly, the Applicant's development application, as amended, is accompanied by a Biodiversity Development Assessment Report (BDAR) prepared in accordance with the requirements of ss 7.4 and 7.7 of the BC Act, and cl 7.3 of the BC Regulation;
3. the Applicant's development application is also accompanied by a test of significance prepared by Cumberland Ecology pursuant to s 7.3 of the BC Act and dated 20 March 2022 in relation to the potential impact of the Proposed Development on koalas which confirms that there are no residual potential impacts on this species that require offsets in relation to the Applicant's BDAR;
4. the Respondent has considered the likely impact of the Proposed Development on biodiversity values as assessed in the Applicant's BDAR (as required under s 7.13(2) of the BC Act) and is satisfied that the likely impact of the Proposed Development, as amended, should be approved, subject to the Parties' agreed conditions of consent;
5. in accordance with section 7.13 of the BC Act, the Parties' agreed conditions of consent 31 and 32 provide for the retiring of biodiversity credits to offset the Proposed Development's residual impact on biodiversity;
1. in relation to the provisions of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (incorporating the provision of the former, and now repealed cl 7(1) of the State Environmental Planning Policy No 55 – Remediation of Land), the Parties have considered, and I am satisfied, that:
1. as confirmed by the Contaminated Land Assessment prepared by EAL Consulting Services, dated 8 February 2012, that formed part of the Applicant's Class 1 application in this appeal, the Subject Site is not contaminated;
2. no further investigations are required into potential contamination on the Subject Site; and
3. the Subject Site is suitable for the purpose of the Proposed Development, as amended;
1. in relation to the provisions of Lismore Local Environmental Plan 2012 (LLEP), the Parties have advised, and I am satisfied, that the Applicant's development application (as amended) satisfies all applicable provisions of the LLEP, and more specifically:
1. the Subject Site is zoned Zone R1 – General Residential under the provisions of cl 2.3 of the LLEP, and under the provisions of cl 2.6 of the LLEP, the Subject Site can be subdivided with development consent, noting that there is no secondary dwelling situated on the Subject Site;
2. the Proposed Development, as amended, is consistent with the objectives for development in the R1 zone for the purposes of cl 2.3(2) of the LLEP by providing residential lots of a standard and size that meet the needs of the community;
3. the lots that would result from the Proposed Development, as amended, would have lot sizes ranging between 603.3m2 (proposed lot 10) and 1,829m2 (proposed lot 2) all of which would satisfy the minimum lot size requirements of 400m2 applicable to subdivision of the Subject Site under the provisions of cl 4.1 of the LLEP;
4. the Subject Site does not contain any heritage item, is not in a heritage conservation area, and is not in the vicinity of any heritage item or heritage conservation area for the purposes of cl 5.10 of the LLEP in relation to heritage conservation;
5. the Subject Site is not located within a flood planning area shown on the flood planning map in the LLEP for the purposes of its cl 5.21 in relation to flood planning;
6. the Subject Site is not mapped on the acid sulfate soils map within the LLEP for the purposes of its cl 6.1 in relation to acid sulfate soils;
7. in relation to the provisions of cl 6.2(3) of the LLEP concerning earthworks, the Applicant's development application is accompanied by a slope stability assessment and a hydraulic assessment which together which have considered the likelihood of any disruption to drainage pattern and soil/subsurface stability, and which have recommended mitigation measures accepted by the Applicant;
8. in relation to the provisions of cl 6.4 of the LLEP concerning drinking water catchments, the development application is accompanied by a concept stormwater management plan which:
1. recommends the provision of a bioretention basin on the Subject Site to ensure that the environmental values of the downstream receiving environment are not significantly impacted; and
2. concludes that, with adoption of the bioretention basin recommendation, appropriate stormwater treatment will be achieved in relation to stormwater flows from the Subject Site;
1. The Parties have also advised, and I am satisfied, that the matters raised by resident objectors as a consequence of the Respondent's notification of the Proposed Development, as amended, have been considered have been satisfactorily addressed through the Applicant's development application, as amended, or through the Parties' agreed conditions of consent in the proceedings.
1. Having considered the advice of the Parties, provided above at [10], I agree that:
1. the Applicant's Development Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act; and
2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 8.7(1) of the EP&A Act have been so satisfied.
1. Further, I am 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.
2. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision.
3. 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.
4. The Court notes:
1. that Lismore City Council, as the relevant consent authority under cl 55(1) of the EP&A Regulation 2000, has agreed to the Applicant amending development application DA 19/438 to rely on the documents annexed hereto and marked Annexure "A" (Amendments to the Application);
2. the amended development application documents listed at Annexure "A" were lodged on the NSW planning portal by the Respondent on 9 June 2022;
3. the Applicant filed the amended development application documents listed at Annexure "A" with the Court on 8 June 2022.
Orders
1. The orders of the Court are:
1. leave is granted for the Applicant to amend the class 1 application to rely on the further and amended material comprising the amendments to the Application annexed hereto and marked "Annexure A";
2. the appeal is upheld;
3. development consent is granted to development application DA 19/438, as amended, for Torrens title subdivision resulting in 13 residential lots with a residual parcel containing a stormwater detention basin, extension of Greenwood Drive, bulk earthworks, tree and vegetation removal subject to the conditions annexed hereto and marked Annexure "B".
………………………..
M Chilcott
Commissioner of the Court
Annexure A.pdf
Annexure B.pdf
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Decision last updated: 23 June 2022