Land and Environment Court New South Wales Medium Neutral Citation: 4060 Brundah Road Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 1041 Hearing dates: Conciliation Conference 15 December 2022 Date of orders: 03 February 2023 Decision date: 03 February 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld; (2) Development consent is granted to DA/2021/1178/1 for the subdivision of Lot 10 DP 1262991 and Lot 3 DP 244682 into six residential lots and one residue lot subject to the conditions set out in Annexure A. Catchwords: APPEAL – development application – subdivision of land – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl55 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 4, 9, ss 4.9, 6.65, 9.3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Wollondilly Local Environmental Plan 2011 cl 2.6, 6.1, 6.2, 7.5 Category: Principal judgment Parties: 4060 Brundah Road Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: A Perkins (Solicitor) (Applicant) A Menyhart (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) Bal Lawyers (Respondent) File Number(s): 2022/252910 Publication restriction: No JUDGMENT 1. COMMISSIONER: This appeal concerns a development application for the subdivision of land at 40, 60 and 80 Brundah Road, Thirlmere into six large residential lots and a residual lot. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 December 2022. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 25 January 2023, following the agreement of the Council to an amendment to the development application, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. The amendment addresses the stormwater drainage for the site and includes a stormwater management design. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant consent to the development application. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, and the Class 1 Application and its attachments. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned R5 Large Lot Residential, pursuant to the Wollondilly Local Environmental Plan 2011 (WLEP). Pursuant to cl 2.6 of the WLEP, subdivision is permissible with development consent. * The proposed development complies with the minimum subdivision lot size development standard in the WLEP, with each of the subdivided lots to be greater than 4000m2. * The civil works and earthworks that form part of the proposed development do not result in a building that breaches either the height development standard or the floor space ratio development standard that arise pursuant to the WLEP. * Consistent with the requirements of cl 6.1(2) of the WLEP, the Director-General has certified in writing on 23 December 2022 that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure. * Based on the works included in the proposed development, as well as on the conditions of consent, I am satisfied that adequate arrangements have been made to make public utility infrastructure available when it is required, as required by cl 6.2 of the WLEP. * The development application includes earthworks for the drainage works and the road widening. Based on the Statement of Environmental Effects dated 25 February 2022, the Drainage Assessment dated 14 December 2022, the engineering plans dated 20 July 2022 and the proposed conditions of consent, I have considered the matters set out in cl 7.5(3) of the WLEP. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the combined Preliminary Site Investigation and Detailed Site Investigation report dated 28 September 2021, the site is suitable for the development. * Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to the site. As there is no vegetation clearing proposed in the development, there is no potential impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.9(3) of the SEPP B&C. * Pursuant to s 6.65 of the SEPP B&C, the repealed Ch 9 of the SEPP B&C continues to apply to the proposed development. Chapter 9 concerns the Hawkesbury-Nepean River system. Based on the documents accompanying the Class 1 Application, I have considered the matters required to be considered by s 9.3. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that Wollondilly Shire Council, as the relevant consent authority, has agreed, pursuant to cl 55(1) of the EPA Regulation 2000, to the applicant amending development application DA/2021/1178/1 by the Drainage Assessment Rev 1 plan dated 14 December 2022. 4. The Court orders that: 1. The appeal is upheld; 2. Development consent is granted to DA/2021/1178/1 for the subdivision of Lot 10 DP 1262991 and Lot 3 DP 244682 into six residential lots and one residue lot subject to the conditions set out in Annexure A. J Gray Commissioner of the Court ********** Annexure A 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: 03 February 2023