Land and Environment Court New South Wales Medium Neutral Citation: St Georges Basin Development Pty Ltd v Shoalhaven City Council [2022] NSWLEC 1669 Hearing dates: Conciliation Conference, 26 September, 17 November 2022 Date of orders: 02 December 2022 Decision date: 02 December 2022 Jurisdiction: Class 1 Before: Dickson C Decision: Matter Number 2021/361596: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development consent is granted to development application DA21/1480 for the staged construction of 21 multi dwelling housing dwellings at proposed lots 201-208, 301-306 and 401-406 in development consent SF 10956 over lot 68, 69 in DP 25550 and Lot 4 in DP 785956 at Crowea Road, Saltmarsh Rise and Cape Crescent, St Georges Basin, subject to the conditions at Annexure A. Matter Number: 2022/ 259445: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development consent is granted to development consent SF 10956 for Torrens title subdivision of proposed lots 2,3 and 4 in development consent SF9847 over lot 68, 69 in DP 25550 and Lot 4 in DP 785956 to create 21 lots and 1 residue lot (for a future commercial/mixed use development) at Crowea Road, Saltmarsh Rise and Cape Crescent, St Georges Basin subject to the conditions at Annexure B. Catchwords: DEVELOPMENT APPLICATION: staged construction of multi dwelling housing – amended plans – agreement between the parties – orders made. SUBDIVISION APPLICATION: further subdivision of estate – no physical works proposed – amendment to incorporate residue parcel for future commercial use. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7, Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 34 Rural Fires Act 1997 s 100B. Shoalhaven Local Environmental Plan 2014 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.10, 4.6 State Environmental Planning Policy No 55—Remediation of Land 1998 Category: Principal judgment Parties: St Georges Basin Developments Pty Ltd (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: J Reid (Applicant) J Smith (Respondent) Solicitors: Macquarie Lawyers (Applicant) Shaw Reynolds Lawyers (Respondent) File Number(s): 2021/361596 2022/259445 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant, St Georges Basin Developments Pty Ltd, appeals pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of their development applications by Shoalhaven City Council. The proceeding relates to two separate development applications, which by the Registrar's order are being heard together. Both development applications are proposed at Crowea Road, Saltmarsh Rise and Cape Crescent, St Georges Basin (currently lots 68, 69 in DP 25550 and Lot 4 in DP 785956). The site has the benefit of a subdivision consent (SF9847) which approved a staged 10 Lot Torrens Title subdivision, the development applications the subject of these proceedings are over proposed lots 2,3 and 4 in that consent. 2. The applications, as amended, are: * 2021/361596: Development Application DA21/1480 for the staged construction of multi dwelling housing on proposed lots 201-208, 301-306 and 401-406 in development consent SF 10956 over lot 68, 69 in DP 25550 and Lot 4 in DP 785956. * 2022/259445: Subdivision Application SF10956 for staged Torrens Title subdivision of proposed lots 2, 3 and 4 in development consent SF9847 over lot 68, 69 in DP 25550 and Lot 4 in DP 785956 to create 21 lots and 1 residue lot (for a future commercial/mixed use development). 1. The appeal was listed for conciliation on 29 April 2022. The parties were unable to reach agreement and the conciliation conference was terminated. However, following the conciliation, discussions continued between the parties. These discussions led to the production of amended plans and documentation for which leave was granted by the Court on 3 August 2022. The matter was listed for hearing on 27 September 2022, but at the request of the parties the hearing was adjourned, and a further conciliation conference held. I presided at the further conciliation conference. A signed agreement pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act) was filed with the Court on 17 November 2022. That agreement is that the appeal be upheld, and the development application be approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 2. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The development applications were made with the consent of the owner of the subject site. 2. The development applications were notified concurrently between 5 and 19 August 2022. One objection was received. Further, at the commencement of the conciliation conference a resident and representative of a local community organisation addressed the Court. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent pursuant to s 4.15(1)(d) of the EPA Act. Matter: 2021/361596 1. The proposal requires concurrence from the Rural Fire Services under s 100B of the Rural Fires Act 1997. Concurrence has been provided and is reflected in conditions of consent at Annexure A. 2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land 1998 to the new instrument. In determining the development application consideration has been given as to whether the subject site is contaminated as required by s 4.6 of SEPP RH. I am satisfied that there is no evidence of contamination and that the grant of consent to development application SF9847 approved the change of use of the subject site to residential. 3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 the development is BASIX affected development. The development application is accompanied by the required BASIX certificates. 4. Furthyer, SEPP RH applies as the site is mapped within the Coastal Environmental Area. In determining the development application, I am considered the matters at subs(1) of s 2.10 in SEPP RH. As required by subs (2) I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact referred to in subs (1). 5. The subject site is zoned B4 Mixed Use Development. On 21 October 2022 the Shoalhaven Local Environmental Plan 2014 (Amendment 46) (LEP 2014) was gazetted and applies to the property as cl 1.8A of LEP 2014 does not apply to amendment 46 The proposed development, multi dwelling housing, is permissible in the zone. In determining the development application, I have had consideration to the objectives of the B4 Mixed Use zone. 6. The amended development application complies with the relevant development standards in LEP 2014. Matter: 2022/259445 1. Subdivision is permitted with consent in the B4 Mixed Use zone. In determining the development application, I have had consideration to the objectives of the B4 Mixed Use zone. 2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH ) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land 1998 to the new instrument. In determining the development application consideration has been given as to whether the subject site is contaminated as required by s4.6 of SEPP Resilience and Hazards. I am satisfied that there is no evidence of contamination and that the grant of consent to development application SF9847 approved the change of use of the subject site to residential. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that, in both proceedings, Shoalhaven City Council as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the applicant amending their development application and to rely on the amended plans and documents listed at Condition 2 of Annexure A and B. Matter Number 2021/361596 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent is granted to development application DA21/1480 for the staged construction of 21 multi dwelling housing dwellings at proposed lots 201-208, 301-306 and 401-406 in development consent SF 10956 over lot 68, 69 in DP 25550 and Lot 4 in DP 785956 at Crowea Road, Saltmarsh Rise and Cape Crescent, St Georges Basin, subject to the conditions at Annexure A. Matter Number: 2022/ 259445 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away as agreed or assessed as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent is granted to development consent SF 10956 for Torrens title subdivision of proposed lots 2,3 and 4 in development consent SF9847 over lot 68, 69 in DP 25550 and Lot 4 in DP 785956 to create 21 lots and 1 residue lot (for a future commercial/mixed use development) at Crowea Road, Saltmarsh Rise and Cape Crescent, St Georges Basin subject to the conditions at Annexure B. ………………………….. D Dickson Commissioner of the Court 21.0361596 Annexure A (649167, pdf) 22.259445 Annexure B (199683, pdf) ********** Amendments 02 December 2022 - Annexures attached to judgment 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: 02 December 2022