Land and Environment Court New South Wales Medium Neutral Citation: Cortas Pty Ltd v Coffs Harbour City Council [2023] NSWLEC 1317 Hearing dates: Conciliation conference on 27 March 2023; 4 May 2023 Date of orders: 30 June 2023 Decision date: 30 June 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development application no. DA0145/23DA seeking approval for the Torrens Title subdivision of land into thirty-eight (38) lots for the purpose of thirty-seven (37) low density residential lots, one (1) public reserve lot and a new public road corridor and other ancillary works including earthworks, stormwater management and street tree planting at Lot 2 DP 1281309 is determined by the grant of consent, subject to the conditions set out in Annexure A. Catchwords: APPEAL – development application – conciliation conference – agreement between the parties – orders Legislation Cited: Coffs Harbour Local Environmental Plan 2013, cll 4.1, 5.21, 7.1, 7.2, 7.8, 7.11, 7.12, 7.13 Environmental Planning and Assessment Act 1979, s 4.16 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4 ss 4.4, 4.9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2; Ch 4 s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2 Texts Cited: City of Coffs Harbour Community Participation and Engagement Plan Coffs Harbour Development Control Plan 2015 Planning for Bushfire Protection 2019 Category: Principal judgment Parties: Cortas Pty Ltd (Applicant) Coffs Harbour City Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2022/322618 Publication restriction: Nil Judgment 1. These proceedings arise following Coffs Harbour City Council's refusal of the applicant's development application (DA0145/23) for a residential subdivision of Lot 2 in DP 1281309 known as Tasman Street, Corindi Beach (site). 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 27 March 2023. I presided over the conciliation conference. At the conciliation the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The agreement was based on an amended application. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the decision is one that the Court could have made in the proper exercise of its functions. 4. The parties' decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act (EPA Act) to grant consent to the development application subject to conditions. Based on the evidence I accept the parties' joint submissions that the proposed development satisfies all relevant preconditions for the following reasons. Coffs Harbour Local Environmental Plan 2013 (CHLEP) 1. The site is zoned partly R1 and partly R2 in the CHLEP and the zonings permit small lot subdivision for the purpose of residential purposes. Minimum lot size 1. The amended plans now comply with the minimum subdivision lot size in cl 4.1 of the CHLEP. In that regard, it is to be noted that the R1 zoned lots are 1200sqm or greater, and the R2 zoned land meets the minimum 400sqm standard. Clause 5.21 – Flooding 1. The site is not within a mapped flood planning area however, the area of the site proximate to the southern boundary is affected by the 1% AEP Floor Level. 2. In respect of the 1% AEP issue the applicant had a report prepared by de Groot & Benson Pty Ltd dated 17 August 2022 (the de Groots Report) which noted that the AEP levels was at RL3.8 and that each lot will be filled to approximately RL5 being a sufficient level to ameliorate flood impacts to each allotment. Additionally, any reduction in flood storage would be more than compensated by the provision of a detention basin. 3. The parties agree, and I accept that the requirements of cl 5.21 especially those provisions in cl 5.21(2) which are matters that the consent authority must be satisfied by prior to the grant of consent have been adequately considered in respect of the amended plans. Clause 7.1 – Acid sulfate soils 1. The site is partly within a Class 5 Acid sulfate soil area and partly in a Class 3 Acid sulfate soil area. 2. Clause 7.1(3) of the CHLEP states: Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. 1. There are exceptions to this requirement at cl 7.1(4). This clause states: Despite subclause (2), development consent is not required under this clause for the carrying out of works if— (a) a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and (b) the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works. 1. A geotechnical report was prepared by Regional Geotechnical Solutions dated 28 July 2022 which considered the acid sulfate soils at the site (the Geotech Report). 2. The Geotech Report concluded at par 4.4 that, 'based on the results of the assessment, detailed soil sampling and field testing is not required and the site soils to the depth of investigation are not considered to be either Actual or Potential ASS'. The Geotech Report concluded that on this basis an 'ASS Management Plan is therefore not required.' 3. The parties agree, and I accept that the provisions of this clause have been satisfied and that the amended plans will have no effect on this assessment. Clause 7.2 – Earthworks 1. Clause 7.2(3) states: (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters— (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development, (i) the effect of the development on Aboriginal cultural heritage. 1. The parties agree, and I accept that the matters in cl 7.2(3) have been duly considered in the Geotech Report, the de Groots Report and the Statement of Environmental Effects prepared by Keiley Hunter Town Planning dated August 2022 (the 'SEE'). Clause 7.8 – Koala habitat 1. The site is not mapped on the Koala Planning Map as containing primary, secondary or tertiary koala habitat and is not mapped as a locally or regionally significant koala habitat link as shown in the Habitat Links Map. 2. The parties agree, and I accept that there are no koala-related matters that would prohibit the issue of consent. Clause 7.11 – Essential services 1. The parties agree that all relevant and essential services as outlined in cl 7.11 are available on the site. These matters have been thoroughly considered in the SEE. Clause 7.12 – Design excellence 1. The parties agree and I accept that consideration has been given to design excellence on the R1 zoned component of the site in the SEE and that consideration satisfies the requirements of cl 7.12(4). Clause 7.13 Coffs Harbour City Centre 1. The parties agree and I accept that the proposed development maintains the primacy of the Coffs Harbour City Centre as the principal business, office, retail, cultural, civic and entertainment hub of the Coffs Harbour City. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) Chapter 2 – Coastal Management 1. The parties agree that Ch 2 is a relevant consideration. 2. Part of the site is on land that is in the proximity to a coastal wetland and consideration must be given to and satisfaction reached that the proposed development will not significantly impact on: 1. the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest; and 2. the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest. 1. Consideration of these matters have been undertaken on pp 14 and 15 of the SEE and the parties agree, and I accept that there is no significant impact on those items raised above. Chapter 4 – Remediation of Land 1. Chapter 4 of the SEPP RH is a relevant consideration in these proceedings. 2. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the site is contaminated. Section 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4). 3. A Preliminary Environmental Site Assessment was undertaken by Earth Water Consulting dated 8 August 2022 and concluded that 'the desktop review and site inspection shows that there is a low risk of significant contamination being present that would preclude the proposed R2 low density residential redevelopment of the Site.' It further concluded that no further investigations at the time are required. 4. The parties agree, and I accept that the matters of contamination have been adequately dealt with. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) Chapter 4 – Koala Habitat Protection 1. Pursuant to s 4.4 of the BC SEPP, this clause applies to the Council area. 2. Pursuant to s 4.9(2), before a council may grant consent to a development application for consent to carry out development on the land, the council must assess whether the development is likely to have any impact on koalas or koala habitat. 3. Pursuant to s 4.9(3), if the council is satisfied that the development is likely to have low or no impact on koalas or koala habitat, the council may grant consent to the development application. 4. The applicant provided an amended Ecological Report prepared by Wolfpeak dated 2023 which considers the koala habitat and determined that the proposed development as amended by the amended plans will have little or no impact on the koala habitat in the immediate precinct, noting there does not appear to be a habitat on the site. 5. The parties agree, and I accept that the requirements in Ch 4 of the BC SEPP apply but that the proposed development does not create any impact and that the relevant matters have been considered. State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) 1. Chapter 2 of the TI SEPP applies to the site. 2. The SEE deals with the relevant matters for consideration in the TI SEPP at pp 16 and 17. 3. The parties agree, and I accept that the relevant considerations of the TI SEPP have been assessed as part of the assessment of the DA together with the amended plans. Rural Fires Act 1997 (Rural Fires Act) and Planning for Bushfire Protection 2019 (PBP) 1. The site is mapped as being bushfire prone and the Rural Fires Act and the PBP have been satisfied by the applicant's Bush fire hazard assessment prepared by Black Ash Fire dated April 2023. 2. The Rural Fire Service has given its concurrence and issued its BFSA under cover of letterhead dated 26 May 2023. Coffs Harbour Development Control Plan 2015 (CHDCP) 1. I note that consideration of the CHDCP has been comprehensively undertaken in the SEE at pp 31-54 and the Council raises no issue in that regard Community participation 1. The application which is integrated development was notified in accordance with the Council's Community Participation Plan for a period of 28 days from 16 September 2022 to 14 October 2022. Four (4) submissions were received by the Council. Two submissions in support and two opposing the development. (They are summarised at par 15 at p 3 of the SOFAC). The plans were then amended and renotified on 11 May 2023 for 7 days and the Council received two (2) submissions raising new issues in respect of impacts on kangaroos and stormwater drainage. 2. The Council informs me that all relevant submissions of objectors have been taken into account and addressed by the amended plans and the agreed conditions of consent. Conclusion 1. As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision. 2. The Court notes that the applicant has applied to, and the Coffs Harbour City Council as the relevant consent authority has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to amend DA No. DA0145/23DA by incorporating: Drawing Title / Plan no. Version Prepared by Dated Lot Layout / DA1 C De Groot & Benson 12/04/2023 Earthworks / Sediment Erosion Plan / DA2 C De Groot & Benson 12/04/2023 Road and Drainage Plan D De Groot & Benson 12/04/2023 Road 1 Longitudinal Section / DA5 A De Groot & Benson 1/03/2023 Sewer and Water / DA11 C De Groot & Benson 12/04/2023 1. Furthermore, that the applicant agrees to pay the Council's costs thrown away by reason of the amendment of the development application in the sum of $6,500 within seven (7) days of the date of this judgment. 2. The Court orders: 1. The appeal is upheld. 2. Development Application DA0145/23DA seeking approval for the Torrens Title subdivision of land into thirty-eight (38) lots for the purpose of thirty-seven (37) low density residential lots, one (1) public reserve lot and a new public road corridor and other ancillary works including earthworks, stormwater management and street tree planting at Lot 2 DP 1281309 is determined by the grant of consent, subject to the conditions set out in Annexure A. ……………….. S Dixon Senior Commissioner of the Court Annexure A (248250, 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: 30 June 2023