Land and Environment Court New South Wales Medium Neutral Citation: Trio Enterprises Pty Limited v Wingecarribee Shire Council [2023] NSWLEC 1563 Hearing dates: Conciliation conference on 10 July 2023 Date of orders: 25 September 2023 Decision date: 25 September 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that were thrown away as a result of amending the development application in the sum of $54,595.00 within 28 days. (2) The appeal is upheld. (3) Development consent is granted to Development Application number 23/0445 for a multi dwelling housing development consisting of 8 x two storey four-bedroom dwellings with attached double garages, along with driveway access, visitor parking and landscaping at 9a Henderson Avenue, Mittagong subject to conditions in accordance with 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 4.15, 4.16, 8.15(3) Environmental Planning and Assessment Regulation 2021, s 38; Sch 7 Land and Environment Court Act 1979, ss 34, 39(6) State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 8 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy Amendment (Water Catchments) 2022 Water Management Act 2000 Wingecarribee Local Environmental Plan 2010, cll 5.21, 7.3, 7.5 Category: Principal judgment Parties: Trio Enterprises Pty Limited (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: D Accoto (Solicitor) (Applicant) A Sinclair (Solicitor) (Respondent) Solicitors: Auslex Law Group (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/386173 Publication restriction: Nil JUDGMENT 1. These proceedings arise following Wingecarribee Shire Council's deemed refusal of the applicant's development application DA23/0445 (DA) for a multi-dwelling housing development at Lot 2 DP 1088230, also known as 9A Henderson Avenue, Mittagong (site). 2. The DA, as amended, includes 8 detached dwellings and a driveway with a single access and egress point from Henderson Avenue, together with associated earthworks, drainage works, and landscaping (amended DA). 3. 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 10 July 2023. I presided over the conciliation conference. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This 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 amended DA, subject to agreed conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. 6. There are jurisdictional preconditions that must be satisfied before this function can be exercised. These matters are identified in the parties' joint jurisdictional submission which accompanied the s34 agreement and I am satisfied having regard to the parties' submission and the evidence before me that there is no jurisdictional impediment to the grant of development consent as proposed by the parties. In that regard, I note the following matters. EPA Act Owner's consent 1. The site is owned by the applicant, Trio Enterprises Pty Ltd. Owner's consent has been given by the director of the company on 10 October 2022. Permissibility 1. The site is zoned R3 Medium Density Residential under the Wingecarribee Local Environmental Plan 2010 (WLEP). Development for the purposes of multi dwelling housing is permitted with consent in that zone. Consultation 1. The DA was identified as Integrated Development requiring approval under the Water Management Act 2000. The DA was referred to WaterNSW on 2 November 2022. On 9 February 2023, WaterNSW provided its concurrence to the DA being approved, subject to certain conditions of consent being imposed. Those conditions have been included in the agreed conditions of consent (Annexure A). On 28 July 2023, the amended DA was referred to WaterNSW. That re-referral remains outstanding. Condition 1 of the concurrence provides for the applicant to seek agreement of WaterNSW prior to revisions to site layout, works or staging of the subdivision that will have any impact on water quality and that can be done at a later stage. The parties submit and I accept that in the circumstances it is appropriate for the Court to exercise its powers under s 39(6) of the LEC Act to determine and approve the appeal without the concurrence of WaterNSW for the development amended DA. Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) BASIX Certificate 1. The DA is for 'BASIX development' as it involves the erection of BASIX buildings, see Sch 7 of the EPA Reg 2021. 2. An amended BASIX certificate No. 1399794M dated 12 June 2023 has been filed. The amended DA, provided to the Council on 20 July 2023, does not result in the development differing materially from the description in the BASIX certificate dated 12 June 2023 and so the parties agree that a further BASIX certificate is not required. 3. An amended NatHERS Certificate No. #HR-NWW49N-01 dated 12 June 2023 has also been filed. State Environmental Planning Policy Provisions Contamination 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. A preliminary site investigation report (PSI) was completed on 31 May 2023. It concluded that the risk of contamination on the site is low to minimal, and that the site could be made suitable with the implementation of the recommendations set out in the PSI, including the adoption of a contingency plan and an unexpected finds protocol in a Construction Environmental Management Plan. Relevantly, the recommendations have been set out in the PSI and included in the parties' agreed conditions of consent. Drinking Water Catchment 1. The site is located in the Sydney Drinking Water Catchment for the purposes of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). 2. The DA was lodged before the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 on 21 November 2022 and therefore Ch 8 of the BC SEPP as at 20 November 2022 applies. 3. A consent authority must not grant development consent on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. If the NorBE Tool applies, the consent authority must undertake an assessment using that Tool. On 9 February 2023, WaterNSW confirmed that the proposed development can achieve a neutral or beneficial effect (NorBE) on water quality provided appropriate conditions are included in any development consent and are subsequently implemented. The relevant controls are included in the agreed conditions of consent. WLEP Provisions Clause 5.21: Flooding 1. Clause 5.21(2) of the WLEP provides: (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development— (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. 1. Each of these factors is addressed in the report from the applicant's consultant flood engineer, Mr Barthelmess. The report has been reviewed by the Council's consultant engineer, Mr Bond. The parties agree and I am satisfied on the basis of the report that the matters in cl 5.21(2) have been satisfactorily addressed. 2. Relevantly, in relation to each matter in cl 5.21(2): 1. Compatibility – flood modelling demonstrates that the proposed dwellings will not be affected by flooding up to and including the 1% Annual Exceedance Probability (AEP). The site is located outside of the floodway, and any areas of high hydraulic hazard. 2. Absence of detrimental increases in flood affectation – the modelling also shows that there will be a decrease in overland flow surface levels on adjacent properties up to the 1% AEP. The amended DA will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties. 3. Safe occupation and evacuation – each of the dwellings under the amended DA acts as an on-site refuge. The ground floor of each dwelling is not modelled to be inundated during a flood up to the Probable Maximum Flood (PMF). 4. Measures to manage the risk to life from flood – the floor area of each dwelling is above the 1% AEP flood level plus freeboard. Each dwelling serves as a refuge area up to and including the PMF. 5. Adverse environmental impacts – the site is not proximate to any existing watercourse or riparian vegetation. Clause 7.3 Excavation 1. Clause 7.3(3) of the WLEP provides that before granting development consent for earthworks the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or of the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material or the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or other relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area. 1. The amended DA will involve excavation, both cut and fill within the site boundaries. 2. The proposed earthworks will require 460m3 fill and 1160m2 cut with a net cut of 700m3. 3. Stripped material will be reused on site where possible. Surplus/unsuitable material will be exported and disposed of appropriately. 4. Similarly, although an Aboriginal Heritage Information Management System search found no recordings of Aboriginal sites within a 200m radius of the site, works would cease in accordance with legislation should any find be uncovered during construction. 5. I am satisfied on the basis of the amended plans that the requirements of cl 7.3(3) are met: see the Civil Engineering drawings prepared by ROC Engineering. Clause 7.5(4): Natural resources sensitivity—water 1. Part of the site's access handle to Brewster Street is mapped on the Natural Resources-Sensitive Land Map under the WLEP as containing Riparian Land Category 3 - Bank Stability & Water Quality. That is land which is within 10m from the top of stream bank on each side. The evidence is that the watercourse has previously been piped. 2. Clause 7.5(4) of the WLEP applies to riparian land and states that consent must not be granted unless the consent authority is satisfied that: (a) The development is designed, sited, and will be managed to avoid any potential adverse environmental impact; (b) If that impact cannot reasonably be avoided, the development is designed, sited, and will be managed to minimise that impact; and (c) If that impact cannot be minimised, the development will be managed to mitigate that impact. 1. The relevant environmental impact needs to be considered in light of the objectives of the clause, which include the protection of water quality, and protection of natural water flows. 2. Modelling carried out by the applicant's consultant stormwater engineer shows that the development will result in: * a reduction in suspended solids and pollutants entering the overland flow in percentages varying from 64 to 96% (in excess of the targets in Australian Runoff Quality: A Guide to Water Sensitive Urban Design); * a reduction in overland runoff because of the development (by reason of the use of on-site detention); which is agreed by the Council to be beneficial. 1. ROC Engineering have considered the Water Cycle Management Study and the Civil set of plans and consider that the development will not produce an adverse environmental impact. 2. In the circumstances, I am satisfied on the expert evidence that the development avoids and will be managed to minimise any potential adverse environmental impact in terms of water quality and flows. 3. The DA was notified and advertised from 7 November 2022 until 21 November 2022 (14 days) in accordance with the Wingecarribee Shire Council Community Engagement Strategy and there were 6 separate written objections to the DA. 4. 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. 5. 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 DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 6. The Court notes that: 1. Wingecarribee Shire Council, as the relevant consent authority, pursuant to s 38 of the EPA Reg 2021, has agreed to the applicant amending Development Application No. DA 23/0445 to rely on the amended plans and documents specified in the table below. Plan Title / Supporting Document Reference / Version Prepared By Dated Title Sheet A-000 C adm Architects 13 June 2023 Site Plan A-101 C adm Architects 13 June 2023 Ground Floor Plan A-102 D adm Architects 20 July 2023 Level 01 Floor Plan A-103 C adm Architects 13 June 2023 Roof Plan A-104 C adm Architects 13 June 2023 Elevations 01 A-201 C adm Architects 13 June 2023 Elevations 02 A-202 C adm Architects 13 June 2023 Elevations 03 & Section A-A A-203 C adm Architects 13 June 2023 Pre and Post Adaptation Plan A-301 B adm Architects 13 June 2023 Colour and Materials Schedule A-501 B adm Architects 13 June 2023 Civil Specification C01 Rev 8 ROC Engineering Design 17 July 2023 and Details Civil Specification Sheet 2 C02 Rev 8 ROC Engineering Design 17 July 2023 Concept Stormwater Drainage Plan C10 Rev 8 ROC Engineering Design 17 July 2023 Concept Stormwater Roof Drainage Plan C11 Rev 8 ROC Engineering Design 17 July 2023 Proposed Tributary Areas Plan C14 Rev 8 ROC Engineering Design 17 July 2023 Water Quality Model Catchments Plan C15 Rev 8 ROC Engineering Design 17 July 2023 Stormwater Details Sheet 1 C16 Rev 8 ROC Engineering Design 17 July 2023 Stormwater Details Sheet 1 C17 Rev 8 ROC Engineering Design 17 July 2023 Siteworks and Grading Plan C21 Rev 8 ROC Engineering Design 17 July 2023 Signage and Linemarking Plan C22 Rev 9 ROC Engineering Design 2 August 2023 Access Sections Sheet 1 C25 Rev8 ROC Engineering Design 17 July 2023 Access Sections Sheet 2 C26 Rev 8 ROC Engineering Design 17 July 2023 Sediment and Erosion Control Plan C31 Rev 8 ROC Engineering Design 17 July 2023 Sediment and Erosion Control Details C35 Rev 8 ROC Engineering Design 17 July 2023 Bulk Earthworks Plan C41 Rev 8 ROC Engineering Design 17 July 2023 Bulk Earthworks Sections Sheet 1 C45 Rev 8 ROC Engineering Design 17 July 2023 Bulk Earthworks Sections Sheet 1 C46 Rev 8 ROC Engineering Design 17 July 2023 Bulk Earthworks Sections Sheet 1 C47 Rev 8 ROC Engineering Design 17 July 2023 Bulk Earthworks Sections Sheet 1 C48 Rev 8 ROC Engineering Design 17 July 2023 Water Cycle Management Study 22162-02 REV 7 ROC Engineering Design 17 July 2023 Cover Sheet 4549-F101 D dsb Landscape Architects 13 June 2023 Landscape Plan Area 1 4549-F201 D dsb Landscape Architects 13 June 2023 Landscape Plan Area 2 4549-F202 D dsb Landscape Architects 13 June 2023 BASIX Certificate Certificate number: 1399794M Accelerate Sustainability Assessments 12 June 2023 NatHERS Certificate Certificate number: #HR-NWW49N-01 Accelerate Sustainability Assessments 12 June 2023 Waste Management Plan REF – 23153 Dickens Solutions Pty Ltd July 2023 Flood Certificate FLOOD23/011 Wingecarribee Shire Council August 2022 Traffic and Parking Impact Report A221831N (Version 1a) ML Traffic Engineers September 2022 Flora and Fauna Assessment Project No. 37661 Biosis 27 February 2023 Carpark, Ramp and Driveway Certification of a Proposed Residential Development A221831N (Version 1a) ML Traffic Engineers June 2023 Detail Site Survey - Overall 64756-1 Rev 1 Masters Surveying 24 May 2023 Detail Site Survey - Detail Sheet 1 64756-1 Rev 1 Sheet 2 of 4 Masters Surveying 24 May 2023 Detail Site Survey - Detail Sheet 1 64756-1 Rev 1 Sheet 3 of 4 Masters Surveying 24 May 2023 Detail Site Survey - Detail Sheet 1 64756-1 Rev 1 Sheet 4 of 4 Masters Surveying 24 May 2023 Flood Management Report 23120 Letter 001 Rev 2 Rienco Consulting 25 July 2023 Preliminary Site Investigation and Assessment Report JDRYU272_PSI_V2_9A Dr Upsilon Environments Pty Ltd 31 May 2023 Statement of Environmental Effects L104043 Rev 1 SET Consultants 14 June 2023 1. The amended DA was filed with the Court on 6 September 2023. 2. As a result of the amendment of the development application, the applicant agrees to pay the Council's costs pursuant to s 8.15(3) of the EPA Act, as ordered in order [37(1)] below. 1. The Court orders: 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that were thrown away as a result of amending the development application in the sum of $54,595.00 within 28 days. 2. The appeal is upheld. 3. Development consent is granted to Development Application number 23/0445 for a multi dwelling housing development consisting of 8 x two storey four-bedroom dwellings with attached double garages, along with driveway access, visitor parking and landscaping at 9a Henderson Avenue, Mittagong subject to conditions in accordance with Annexure A. ………………… S Dixon Senior Commissioner of the Court Annexure A (784963, pdf) ********** Amendments 27 September 2023 - Pursuant to UCPR r 36.17, Order (3) is amended to remove reference to a 'Torrens Title Subdivision'. 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: 27 September 2023