Land and Environment Court New South Wales Medium Neutral Citation: Eisenschmitt Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1275 Hearing dates: Conciliation conference on 7 March 2023 Date of orders: 05 June 2023 Decision date: 05 June 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 2 of Annexure A. (2) The applicant is to pay the respondent's costs thrown away as a result of the amendments made as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The appeal is upheld. (4) Development application no. 22/0884 for demolition of the existing structures, removal of trees, construction of a multi-dwelling housing development comprising of 7 townhouses and associated car parking at 4-6 Etheridge Street, Mittagong, is determined by a grant of consent subject to conditions contained in Annexure 'A'. Catchwords: APPEAL – development application – multi dwelling housing development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.15(3) Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, s 30A Land and Environment Court Act 1979, ss 34, 39 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.10, 6.64; Chs 2, 4; Pt 6.5 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Koala Habitat Protection) 2021 (repealed), ss 6, 12; Sch 1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (repealed) State Environmental Planning Policy No 55 – Remediation of Land (repealed) Water Management Act 2000, s 91 Wingecarribee Local Environmental Plan 2010, cll 5.11, 5.21, 7.1, 7.3 Category: Principal judgment Parties: Eisenschmitt Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: K Marginson (Solicitor) (Applicant) B Dyer (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Maddocks (Respondent) File Number(s): 2022/291597 Publication restriction: Nil Judgment 1. These proceedings arise following the Wingecarribee Shire Council's deemed refusal of the applicant's development application (DA22/0884) for demolition and construction of a multi-unit dwelling development with car parking on land identified as Lot 1 DP 1374, known as 4-6 Etheridge Street, Mittagong (development application). 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 7 March 2023. I presided over the conciliation conference. 3. During the conference the applicant agreed to amend the application as follows: 1. reduce the number of townhouses from 8 to 7; 2. insert pathways between TH2 and TH3, TH4 and TH5, TH6 and TH7 to provide access for bins and a visual break in built form; 3. further setback the townhouses from the Etheridge Street frontage such that all habitable gross floor area (GFA) is behind the minimum front setback line; and 4. amend the façade articulation and materiality. 1. There were also amendments to the proposed landscaping and tree management, including: 1. provision of a 2m landscaping strip against the western boundary; 2. removal of trees 2, 4, 5, 8 and 19 to facilitate increased setback of townhouses from the street frontage and to allow for a drainage easement along north-western boundary; and 3. movement of the proposed stormwater drainage easement north, to run east-to-west along the northern boundary of the vacant lot to the west - Lot 2 Sec 43 DP 1374. (A Schedule of the Amendments prepared by Artmade Architects dated 24 March 2023 is found at Tab 2 of s34 agreement bundle). 1. Following the amendment of the development application, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. 2. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the 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 Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application subject to conditions. 3. There are jurisdictional preconditions that must be satisfied before this function can be exercised. These matters are identified in the parties' joint jurisdictional submission accompanying the s34 agreement and I am satisfied about the following matters. Drainage easement 1. The amended application proposes a drainage easement to flow from the north-western corner of the site, running down the southern side of the lot boundary between the vacant lot to the west of the site (Lot 2 Sec 43 DP 1374) and the vacant lot to the north (Lot 2 DP 860768) and connecting with nearby Chinamans Creek. 2. The Council owns both of the above lots, free of encumbrances or third-party interests (see Title Searches at Tab 11 of s34 agreement bundle). 3. The Council has provided its consent for the proposed drainage easement, and the implementation of the easement is accounted for in the parties' agreed conditions of consent (see Conditions 1 and 54). Water Management Act 2000 (WM Act) 1. The development application proposes works within 40m of a watercourse, being Chinamans Creek. Therefore, a Controlled Activity Approval is required in accordance with s 91 of the WM Act. 2. On 15 November 2022, the Department of Planning and Environment provided their General Terms of Approval (GTAs) in relation to the development application (Tab 12 of s34 agreement bundle). Schedule 1 of the GTAs refers to the following documentation: 1. Architectural Drawings, prepared by ArtMade Architects, dated 29 June 2021; 2. Design Report, prepared by ArtMade Architects, dated 12 October 2021; 3. Flood Review for Proposed Residential Development, prepared by Greenview Consulting, dated 8 October 2021; 4. Flora and Fauna Survey and Assessment, prepared by T.J. Hawkeswood Scientific Consulting, dated 25 September 2021; 5. Statement of Environmental Effects, prepared by Think Planners, dated 22 October 2021; and 6. Civil Design Plans, prepared by Greenview Consulting, dated 10 September 2021. 1. Following the issue of the original GTAs, the proposed development as depicted in the architectural and civil plans have been amended to effect the further changes outlined at [3]-[4] above. Relevant to the GTAs, the proposed drainage easement from the underground OSD has been shifted approximately 5m north. 2. For comparison, the civil plans (Rev 2) which are referred to in the GTAs are enclosed behind Tab 20 of the applicant's Class 1 Application and the amended civil plans for which consent is now sought is behind Tab 6 of the s34 agreement bundle. 3. Section 39(6) of the LEC Act provides: (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body— (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (emphasis added) 1. The evidence is that the further amendments that have occurred to the development application (as they relate to the level of impact on Chinamans Creek and the original GTAs issue) are minor in nature and that the only update to be made to the original GTAs relates to notational changes to the list of documents outlined in Schedule 1. Further, the development application is capable of complying with the conditions issued in the original GTAs. These conditions have been included in the agreed conditions of consent. Accordingly, I am satisfied I have jurisdiction to dispose of this matter in accordance with s 39(6)(b). Transfer of Provisions 1. A number of State Environmental Planning Policies (SEPPs) that applied to the proposed development have since been repealed during the appeal process. The provisions were transferred into new SEPPs and the majority did not contain a savings provision. 2. Pursuant to s 30A(2) of the Interpretation Act 1987, where provisions are transferred, the "transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred". State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) 1. The site is identified within the Sydney Drinking Water Catchment, and consequently, is subject to assessment under Pt 6.5 of the BC SEPP. 2. Section 6.64 of the BC SEPP provides that development consent must not be granted to development on land in the Sydney Drinking Water Catchment unless the consent authority has obtained the concurrence of the Regulatory Authority. On 11 May 2023, the Water NSW provided updated concurrence in relation to the amended application. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) 1. In compliance with the relevant requirements under the BASIX SEPP, the applicant has provided an updated BASIX certificate in accordance with the amended application (Tab 10 of the s34 agreement bundle). State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) 1. The development application was lodged under the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to Resilience and Hazards SEPP. 2. Pursuant to s 4.6 of the Resilience and Hazards SEPP, a consent authority must be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. 3. In relation to the satisfaction of requirements under the Resilience and Hazards SEPP, the applicant's Statement of Environmental Effects prepared by Think Planners dated 22 October 2022 (Tab 3 of the Class 1 Application) concludes that the site has been historically used for residential purposes and that there is no information regarding its previous use that would indicate that the site is contaminated. Accordingly, there is nothing to warrant further investigation in relation to contamination is required and that the site can be made suitable for the proposed use. BC SEPP 1. The development application was originally lodged under the provisions of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). On 1 March 2022, the Vegetation SEPP was repealed, and its provisions were transferred to Ch 2 of the BC SEPP. 2. Chapter 2, s 2.10(3) of the BC SEPP relates to clearing vegetation in non-rural areas. The proposed development seeks to remove 17 trees on the site, with 2 trees to be retained. 3. The removal of these trees has been assessed by the Arboricultural Impact Statement prepared by Advanced Arborist Reporting (Tab 6 of the Class 1 Application) and Further Assessment prepared by HughtheArborist dated March 2023 (Tab 8 of s34 agreement bundle). These assessments include protection measures for retention of the nominated existing trees on the site. Compliance with these measures has been incorporated in the conditions of consent. 4. Further the Amended Landscape Plans prepared by Earth Matters Consulting (Tab 5 of s34 agreement bundle) nominates the trees that are to be retained and provides for substantial replacement and replanting of advanced species of a suitable character to the surrounding locality. 5. Having reviewed the documents comprising the development application and amended application, I am satisfied that the proposed development is consistent with Ch 2 of the Biodiversity SEPP. State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala Habitat Protection SEPP) 1. The development application was lodged under the provisions of the Koala Habitat Protection SEPP. On 17 March 2021, the Koala Habitat Protection was repealed and superseded by Ch 4 of the BC SEPP. 2. However, s 4.16 of the BC SEPP includes a savings and transitional provision for Ch 4 in relation to existing development applications. This provides: 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… 1. The whole of the Wingecarribee LGA is identified as a koala management area pursuant to Sch 1 of the Koala Habitat Protection SEPP. Accordingly, the subject site is identified as land to which the SEPP applies, pursuant to s 6. 2. Section 12 of the Koala Habitat Protection SEPP provides that: A council is not prevented from granting consent to a development application for consent to carry out development on land if— (a) the land does not have an approved koala plan of management applying to the land, or (b) the council is satisfied that the land is not core koala habitat. 1. A Flora and Fauna Survey Assessment has been provided by the applicant (Tab 6 of Class 1 Application). This concludes that no koalas or other vulnerable or endangered species were detected on the site (see section 5.2), on the grounds that there is no suitable habitat present for them. 2. Having reviewed the above document and amended application, the Council is satisfied, and I accept that the subject site that the land is not a core koala habitat. Wingecarribee Local Environmental Plan 2010 (LEP) 1. The site is zoned 'R3 – Medium Density Housing' and the proposed use for 'multi dwelling housing' is permissible with consent within the R3 Zone. 2. Clause 5.11 of the LEP relates to bush fire hazard reduction which authorises bushfire hazard reduction work without development consent. While the proposed development does not seek consent for bushfire hazard reduction work, the site is mapped as 'bush fire prone land', being vegetation category 1 and a vegetation buffer. A Bushfire Assessment Report and Certificate prepared by SET Consultants dated 22 October 2021 was lodged with the development application (Tab 7 of the Class 1 Application). This report concludes that the proposed development will be bushfire safe, provided the recommendations made are implemented. The recommendations are incorporated into the conditions of consent. 3. Clause 5.21 of the LEP relates to flood planning. The site is not nominated as being within a flood planning area. A Flood Review prepared by Greenview Consulting dated 8 October 2021 (Tab 13 of the Class 1 Application) was provided with the development application which concludes that that site is almost entirely flood free in the 100yr event, with only a minor affection along the northern boundary, the proposed development will not adversely impact the flood conveyance of the local floodplain and onsite residents may shelter in place in their dwellings if required. 4. Clause 7.1 of the LEP relates to development on existing lots in zones R2, R3 and R5. Clause 7.1(2) stipulates that development consent may be granted for the erection of a multi dwelling housing on a lot to which this clause applies if the development is permissible with consent on the land, noting 'multi dwelling housing' is a permissible land use within the R3 Zone. The proposed development complies with this clause. 5. Clause 7.3 of the LEP relates to earthworks. The s34 agreement includes amended architectural plans which identifies the proposed earthworks (Tab 3 of the s34 agreement bundle). It is considered that the proposed excavation will have minimal adverse environmental or amenity impact. The proposed development complies with this clause. 6. 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. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 7. The Court notes: 1. Wingecarribee Shire Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. 22/0884 in accordance with the documents listed below: Plan name Drawing Number Prepared by Dated Amended Architectural Plans Demolition Plan A02.01/Issue B ArtMade Architects 23/03/23 Site/Roof Plan A02.02/Issue D ArtMade Architects 23/03/23 Ground Floor Plan A03.01/Issue F ArtMade Architects 23/03/23 First Floor Plan A03.02/Issue F ArtMade Architects 23/03/23 Typical Floor Plans A03.03/Issue C ArtMade Architects 23/03/23 FSR Calculations A03.04/Issue D ArtMade Architects 23/03/23 Landscape Calculations A03.05/Issue D ArtMade Architects 23/03/23 Building Elevations and External Finishes – Sheet 1 A04.01/Issue C ArtMade Architects 06/04//23 Building Elevations and External Finishes – Sheet 2 A04.02/Issue C ArtMade Architects 06/04/23 Sections – Sheet 1 A05.01/Issue B ArtMade Architects 23/03/23 Sections – Sheet 2 A05.02/Issue B ArtMade Architects 23/03/23 Driveway Long Section A05.03/Issue B ArtMade Architects 23/03/23 Sun Eye View – Sheet 1 A06.01/Issue D ArtMade Architects 23/03/23 Sun Eye View – Sheet 2 A06.01.1/Issue B ArtMade Architects 23/03/23 Sun Eye View – Sheet 3 A06.01.2/Issue A ArtMade Architects 23/03/23 Shadow Diagrams A06.02/Issue B ArtMade Architects 23/03/23 Rear POS Solar Access Calculations A06.03/Issue A ArtMade Architects 23/03/23 Proposed Easement Location A06.05/Issue A ArtMade Architects 01/03/23 Waste Transfer Plan A06.06/Issue A ArtMade Architects 23/03/23 Amended Landscape Plans Landscape Concept Plan ETH 21 -LD01/Revision 2 Earth Matters Consulting 03/04/23 Plant Schedule Revision 2 Earth Matters Consulting 03/04/23 Amended Stormwater Plans Notes & Legends 210107-CO1/ Revision 2 Greenview Consulting 08/10/21 Ground Floor Drainage Plan 210107-CO2/ Revision 3 Greenview Consulting 03/3/22 Site Stormwater Details Sheet 1 210107-CO3/ Revision 2 Greenview Consulting 08/10/21 Site Stormwater Details Sheet 2 210107-CO4 Greenview Consulting - Easement Plan 210107-CO5 Greenview Consulting - Updated Swept Path Analysis Ground Floor Turning Paths Sheet 1 210107-C10 – Revision 4 Greenview Consulting 28/03/23 Ground Floor Turning Paths Sheet 2 210107-C11 – Revision 4 Greenview Consulting 28/03/23 Ground Floor Turning Paths Sheet 3 210107-C12 – Revision 4 Greenview Consulting 28/03/23 Ground Floor Turning Paths Sheet 4 210107-C13 – Revision 4 Greenview Consulting 28/03/23 Ground Floor Turning Paths Sheet 5 210107-C14 – Revision 3 Greenview Consulting 28/03/23 Supporting Documentation Arboricultural Impact Assessment Hugh The Arborist 24/03/23 Valuation Report Walsh & Monaghan Pty Limited 16/03/23 Schedule of Materials and Finishes Artmade Architects 06/04/2023 Updated BASIX Certificate No. 1238595M_0 Greenview Consulting 01/05/2023 1. The amended development application was filed with the Court on 15 May 2023. 1. The Court orders: 1. The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 2 of Annexure A. 2. The applicant is to pay the respondent's costs thrown away as a result of the amendments made as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is upheld. 4. Development application no. 22/0884 for demolition of the existing structures, removal of trees, construction of a multi-dwelling housing development comprising of 7 townhouses and associated car parking at 4-6 Etheridge Street, Mittagong, is determined by a grant of consent subject to conditions contained in Annexure 'A'. ………………….. S Dixon Senior Commissioner of the Court Annexure A (968627, 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: 05 June 2023