Land and Environment Court New South Wales Medium Neutral Citation: White v Wingecarribee Shire Council [2023] NSWLEC 1084 Hearing dates: Conciliation conference on 24 January 2023 Date of orders: 24 February 2023 Decision date: 24 February 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The Applicant is granted leave to amend the application to rely on amended plans listed in the Conditions of Consent at Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development Application No. 22/0792 for a seniors housing development comprising 40 self-contained dwellings and associated works, at Lots 21 and 22 Section 1 in DP 651 and Lots 3 and 4 in DP 1100480, located at Ferguson Crescent and Belmore Road, Mittagong, is determined by the grant of consent, subject to the Conditions of Consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – seniors housing development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 55, 55AA, 121B Environmental Planning and Assessment Regulation 2021, Sch 6 s 3 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 4.9, 6.65, Chs 6-12 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.91, 2.100 Wingecarribee Local Environmental Plan 2010, cll 4.1, 4.3, 4.4, 5.21, 7.3, 7.10 Category: Principal judgment Parties: Rebecca White (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: P Tomasetti SC (Applicant) J Walker (Solicitor) (Respondent) Solicitors: McCartney Young Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2022/149526 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 22/0792 for a seniors housing development comprising 40 self-contained dwellings and associated works (the proposal), at Lots 21 and 22 Section 1 in DP 651 and Lots 3 and 4 in DP 1100480, located at Ferguson Crescent and Belmore Road, Mittagong (the site), by Wingecarribee Shire Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 January 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. Under s 34(3) of the 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 4. There are preconditions to the exercise of power to grant development consent for the proposal. Amended Plans 1. The Environmental Planning and Assessment Regulation 2000 (2000 Regulation) continues to apply to the application, because the application was lodged on 29 October 2021 and not yet determined on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021 (2021 Regulation)). Pursuant to s 3(2) of Sch 6 to the 2021 Regulation, a requirement to use the NSW Planning Portal under the 2000 Regulation, cll 55(1), 55AA(2)(d) or 121B(1), does not apply if the development application is subject to proceedings in the Court. 2. The Council, as the consent authority, consented to the amendment of the application on 23 January 2023. The amended application amended the architectural plans the subject of the application. As a result of the amendment of the architectural plans, the parties reached agreement during the conciliation conference on 24 January 2023. Planning framework 1. The application is integrated development pursuant to s 100B of the Rural Fires Act 1997 (s 4.46 of the EPA Act). The General Terms of Approval from the Rural Fire Service have been provided. 2. Development, including tree removal and driveway works to provide access to Ferguson Crescent, is proposed to be undertaken on land legally described as Lot 1 in DP 174187 (Transport Land). The Transport Land adjoins the site and is owned by Transport for NSW and is leased by the Australian Rail Track Corporation Ltd (ARTC). The ARTC was advised of the development and provided comment. 3. The Transport Land is a "rail corridor" as defined under s 2.91 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP). Section 2.100(3) of the Infrastructure SEPP is in the following terms: (3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded— (a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10.00 pm and 7.00 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time. 1. I accept the parties' agreement that the acoustic assessment demonstrates that s 2.100(3) of the Infrastructure SEPP is met. The recommendations and requirements of the acoustic assessment are incorporated into the Conditions of Consent at Annexure A. 2. I accept the parties' agreement that the site is not contaminated on the basis of the Phase 1 and Phase 2 investigation reports (s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021). 3. I accept the parties' agreement that the site is not koala habitat on the basis of an assessment of the koala habitat potential of the site (s 4.9 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C)). 4. The site is within the Sydney Drinking Water Catchment (cl 8.8 "Development consent cannot be granted unless neutral or beneficial effect on water quality" of the former provisions of Chs 6-12 (the former provisions), s 6.65 of SEPP B&C). I accept the parties' submission that Water NSW wrote to the Council's General Manager on 6 December 2022 and stated that Water NSW concurs with Council granting consent to the application, subject to conditions, and that Water NSW is satisfied that the proposal can achieve a neutral or beneficial effect on water quality, subject to conditions. Water NSW wrote to the General Manager on 23 January 2023 confirming its concurrence with the amended plans and attaching revised conditions. 5. The site is zoned R2 pursuant to Wingecarribee Local Environmental Plan 2010 (LEP 2010). The objectives of the zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Seniors housing is a nominate permissible use in the R2 zone under LEP 2010. 2. The proposal complies with the development standards under LEP 2010 for minimum subdivision lot size at cl 4.1, height of buildings at cl 4.3(2), and floor space ratio at cl 4.4. 3. I accept the agreement of the parties that the mandatory considerations under cll 5.21, 7.3 and 7.10 of LEP 2010 have been considered and where appropriate, are satisfied. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 24 January 2022 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend the application to rely on amended plans listed in the Conditions of Consent at Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is upheld. 4. Development Application No. 22/0792 for a seniors housing development comprising 40 self-contained dwellings and associated works, at Lots 21 and 22 Section 1 in DP 651 and Lots 3 and 4 in DP 1100480, located at Ferguson Crescent and Belmore Road, Mittagong, is determined by the grant of consent, subject to the Conditions of Consent at Annexure A. Susan O'Neill 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: 24 February 2023