Land and Environment Court New South Wales Medium Neutral Citation: Hawkesbury Riverside Retreat Limited v Hawkesbury City Council [2022] NSWLEC 1359 Hearing dates: 27 June 2022 Date of orders: 14 July 2022 Decision date: 14 July 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) the Appeal is upheld; (2) Development consent is granted to Development Application No. DA0769/15, as amended, for the operation of a caravan park on the land at 78 Greens Road, Lower Portland (Lot 1 DP 862897) subject to the conditions in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders. Legislation Cited: Biodiversity Conservation Act 2016 Biodiversity Conservation (Savings and Transitional) Regulation 2017, cl 27 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 78A Environmental Planning and Assessment Regulation 2000, cl 77 Hawksbury Local Environmental Plan 2012, cll 2.3 Land and Environment Court Act 1979, s 34 Local Government Act 1993 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 9.1, 9.3, 9.4, 9.9 State Environmental Planning Policy (Housing) 2021, Sch 7A cl 2 State Environmental Planning Policy No 21—Caravan Parks, cl 8 State Environmental Planning Policy No 55 - Remediation of Land, cl 7 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy Amendment (Flood Planning) 2021 Cases Cited: IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649 Rothshire Pty Ltd v Blacktown City Council [2022] NSWLEC 1125 Texts Cited: Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: Hawkesbury Riverside Retreat Limited (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: M Driscoll (Applicant) A Seton (solicitor)(Respondent) Solicitors: BCP Lawyers and Consultants (Applicant) Mardens Law Group (Respondent) File Number(s): 2021/45798 Publication restriction: No Judgment 1. COMMISSIONER: Hawkesbury Riverside Retreat Limited (the Applicant) has appealed the refusal by Hawkesbury City Council (the Respondent) of its development application DA0769/15, made with owner's consent, seeking consent to formalise use of land for a caravan park comprising 72 caravan sites (46 of which have an existing consent) and including 26 lots for short term use as caravan sites, along with the removal of vegetation to establish asset protection zones (the Proposed Development) at 78 Greens Road, Lower Portland, Warnervale (the Subject Site). 2. The appeal is made under s 8.7(1) of 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. The Subject Site, which has an area of some 13 Ha, is: 1. located on the banks of, and inside a pronounced bend in, the Hawkesbury River. 2. zoned in C4 Environmental Living (cl 2.3 of WLEP) and use of the site for the purposes of a caravan park is permitted with consent; 3. identified as bushfire prone land and caravan parks as defined as a caravan park is defined as a "special fire protection purpose" under the integrated development provisions of the Environmental Planning and Assessment Act 1979 (EP&A Act). 1. A site inspection was undertaken at the commencement of the hearing, consistent with the Court's COVID-19 Pandemic Arrangements Policy, and the balance of the hearing was undertaken via Microsoft Teams. No objectors sought to make submissions to the Court in relation to the appeal. 2. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation the Proposed Development was placed on public exhibition by the Respondent between 15 December 2015 and 12 January 2016, and no submissions were received in response to that notification. 3. On 27 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. 4. 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 being convened, consistent with the Court's COVID-19 Pandemic Arrangements Policy. No objectors sought to make submissions during the site view. 5. 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. 6. 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. 7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of the Biodiversity Conservation Act 2016: 1. the provisions of the EP&A Act that were in force prior to amendment by the Biodiversity Conservation Act 2016 continue to apply to the development application as that application was made and not finally determined prior to 24 November 2019 (pursuant to the provisions of cl 27 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017); and 2. the development application was not required by the provisions of the former section 78A(8) of the EP&A Act to be accompanied by a species impact statement because: 1. the application was not made in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats; and 2. the Subject Site was also the subject of detailed Ecological Assessment prepared by Cumberland Ecology dated November 2015 in relation to the proposed Development, and this concluded that: "Approximately 2.83ha of vegetation will be partially cleared for the purpose of APZs and additional lots comprising potential habitat for some threatened fauna species. The proposed development will result in the removal of a small area of highly modified vegetation dominated by exotic species. No significant habitat for the assessed species will be removed within the subject site. The proposed development is not likely to place a viable local population of any of these species at risk of extinction. These species are highly mobile and are expected to move between areas of remaining habitat within the subject site and wider locality. The proposed development is not likely to have a significant detrimental impact upon any of the potentially occurring threatened fauna species discussed above." 1. in relation to the provisions of State Environmental Planning Policy No 21—Caravan Parks (SEPP 21): 1. (a) SEPP21 continues to apply to the development application (see the savings provision in s 2(1)(a) of Schedule 7A of State Environmental Planning Policy (Housing) 2021), and SEPP21 relevantly provides in its cl 8: "(2) Before granting development consent to the use of land for the purposes of a caravan park, a Council must determine— (a) the number of sites (if any) within that land that the Council considers are suitable for long-term residence, within the meaning of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993, and (b) the number of sites (if any) within that land that the Council considers are not suitable for long-term residence, but are suitable for short-term residence, within the meaning of that Regulation. (3) A Council must not grant development consent to the use of land for the purposes of a caravan park unless it imposes as a condition of that consent a condition specifying the maximum number of sites (if any) within that land that may be used for long-term residence." (b) a condition specifying the maximum number of sites within that land that may be used for long-term residence and short-term residence has been included in the agreed conditions. 1. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) (incorporating the provisions of the former and now repealed Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River (No 2 – 1997) (SREP20) and which was transferred to Chapter 9 and Schedule 3 of SEPP B&C on 1 March 2022): 1. chapter 9 of SEPP B&C applies to the Subject Site as it is identified on a map referred to in s 9.1 of that SEPP; 2. the Parties have considered the general planning considerations and the specific planning policies and related recommended strategies set out in ss 9.3 and 9.4 of SEPP B&C and they agree, and I am satisfied, that none of the considerations in those sections would warrant refusal of the development application; and 3. the development controls in s 9.9 of SEPP B&C have been satisfied by the Applicant are addressed as follows: 1. clause 9.9(1) requires development consent for development for the purpose of use of land for caravans or other moveable dwellings requiring an approval under the Local Government Act 1993, and the subject application seeks the grant of development consent; 2. clause 9.9(15) requires development consent for all uses in the river or a tributary of the river, or within 40 metres of the high water mark of the river or a tributary of the river where it is tidal or within 40 metres of the bank where it is non-tidal, and the subject application seeks the grant of development consent; and 3. clause 9.9(17) requires development consent for development for the purpose of any sewerage system or work which stores, treats or disposes of sewage (including domestic on-site disposal systems that are ancillary to development which requires consent) but not including a public utility undertaking, and the subject application seeks the grant of development consent as required by the clause; 1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H): 1. on 1 March 2022, the provisions of the former and now repealed State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) were repealed and transferred to Chapter 4 of SEPP R&H; 2. section 4.6(1) of SEPP R&H provides that a consent authority must not consent to the carrying out of any development on land unless: "(a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose" 1. the Parties have confirmed, and I am satisfied, that: 2. the Respondent's electronic records system and Property File for 78 Greens Road (Lot 1 DP 862897) do not include any records that the Respondent has been informed by the EPA, or any other person or body, that 78 Greens Road comprises of contaminated land; 3. the Respondent's electronic records system contains mapping layers identifying properties that have been subject to 'suspected contamination', have been subject to a Hazardous Materials Management Plan, formerly operated as fuel depots or service stations, or have been the subject of past Clean-Up Notices, and that mapping does not identify that the Subject Site falls under any of these contamination categories; and 4. a copy of the Respondent's assessment report relating to the development application that is the subject of this appeal considered provisions of the former State Environmental Planning Policy No. 55 – Remediation of Land and concluded that no evidence or obvious signs of contamination were observed by Council's Environmental Health Officers during a site inspection; and 5. based on its development history the Subject Site is considered suitable for its intended use having regard to the provisions of the former cl 7(12) of SEPP No. 55, and cl 4.6 of SEPP R&H; 1. in relation to the provisions of HLEP: 1. the Subject Site is situated within Zone C4 Environmental Living pursuant to the provisions of HELP, and development for the purposes of a "caravan park" is permissible with consent in Zone C4 Environmental Living; 2. clause 2.3 concerning zone objectives and land use table, and in relation to which: 1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and 2. the Subject Site is zoned C4 Environmental Living, the objectives of which are: * To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. * To ensure that residential development does not have an adverse effect on those values. * To restrict development on land that is inappropriate for development because of its physical characteristics or bushfire risk. * To ensure that land uses are compatible with existing infrastructure, services and facilities and with the environmental capabilities of the land. * To encourage existing sustainable agricultural activities. * To ensure that development does not create or contribute to rural land use conflicts. * To promote the conservation and enhancement of local native vegetation, including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation. * To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways.. 1. the Subject Site is subject to a maximum height of buildings of 10m pursuant to the Height of Buildings Map referred to in cl 4.3(2) of HLEP, and the Proposed Development does not exceed this maximum building height development standard in that clause; 2. the Subject Site is identified as being affected by classes 3, 4 and 5 acid sulfate soils on the acid sulfate soils map referred to in cl 6.1 of HELP, and an acid sulfate soils management plan is not necessary having regard to the nature of the proposed development; 3. the Subject Site is identified as containing both "significant vegetation" and "connectivity between significant vegetation" on the Terrestrial Biodiversity Map referred to in clause 6.4 of HLEP, and the Parties advise, and I am satisfied, that the matters specified in cl 6.4(3) of HLEP have been considered, as required, and having regard to those matters, I am satisfied that the matters in cl 6.4(4) have been fulfilled; 4. the Parties also agree, and I am satisfied, that each of the essential services specified in cl 6.7 of HLEP are available or that adequate arrangements have been made to make them available when required, particularly having regard to the conclusions of the supplementary joint expert reports and the p\Parties' agreed conditions of consent in the case of the disposal and management of sewage and stormwater drainage; 1. in relation to flooding matters: 1. the Subject Site is known to be significantly flood affected; 2. on 14 July 2021, the following amendments were made to HLEP 2021 relating to matters of flood planning: 1. State Environmental Planning Policy Amendment (Flood Planning) 2021 (the Flood Planning SEPP) commenced and under the provisions of Schedule 1 to the Flood Planning SEPP the provisions of cl 6.3 of HLEP were repealed; and 2. the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (Order 2021) commenced and by the effect of Schedule 1 amended HLEP 2012 by inserting a new clause 5.21. 1. notwithstanding these amendments, the provisions of require that amendments made by an amending order such as Order 2021, do not apply to an application that was made, but not determined, before the commencement of the Order 2021; 2. as a consequence, the new cl 5.21 in HLEP does not apply to the Applicant's development application, which was lodged, but not determined, before 14 July 2021; 3. however, the Flood Planning SEPP repealed cl 6.3 of HLEP on 14 July 2021 and did not include a savings provision with respect to development applications lodged before 14 July 2021 and not determined by that date; 4. consistent with the findings of Commissioner Bish in IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434, my findings in Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649 and those of Commissioners Walsh and Sheridan in Rothshire Pty Ltd v Blacktown City Council [2022] NSWLEC 1125, the Parties agree, and I am satisfied, that: 1. there is a hiatus in the flooding planning provisions in that neither the former cl 6.3 nor the current cl 5.21 of HLEP apply to the development application; 2. neither provision presents a jurisdictional bar to the Court's approval of the development application; and 3. even if the flood planning clauses did apply, as a matter of public interest, noting the conclusions reached in the joint expert reports of the Parties' flood engineering experts, Dr Martens and Mr Molino, and the imposition of the Parties' agreed conditions of consent. the Proposed Development is satisfactory in relation to flood planning considerations; 1. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submission of the one objector which is a relevant consideration under section 4.15(1)(d) of the EP&A Act. 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)(b) – (e) of the EP&A Act; and 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 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 that: 1. Hawkesbury City Council as the relevant consent authority, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, has consented to the Applicant amending Development Application No. DA0769/15 made on 2 December 2015 to rely upon the documents specified below: 1. Plan of Management dated 24 June 2022; 2. Geotechnical Investigation prepared JK Geotechnics dated 2 November 2021; 3. Onsite Wastewater Management Strategy prepared by Whitehead & Associates dated 14 March 2022; 4. Flood Emergency Response Plan prepared by Molino Stewart dated 18 May 2022; 1. Hawkesbury City Council has uploaded the amended application on the NSW Planning Portal on 5 July 2022; and 2. the amended application was also filed with the Court on 6 July 2022. Orders 1. The Court orders that: 1. the Appeal is upheld; 2. Development consent is granted to Development Application No. DA0769/15, as amended, for the operation of a caravan park on the land at 78 Greens Road, Lower Portland (Lot 1 DP 862897) subject to the conditions in Annexure "A". ………………………….. M Chilcott Commissioner of the Court Annexure A (535868, 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: 14 July 2022