Land and Environment Court New South Wales Medium Neutral Citation: Baron Corporation Pty Limited v Wingecarribee Shire Council [2023] NSWLEC 1618 Hearing dates: Conciliation conference on 16 October 2023 Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is upheld. (2) The Court, in exercising the functions of Wingecarribee Shire Council, as the relevant consent authority, under s 39(2) of the Land and Environment Court Act 1979, agrees, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No DA23/0169 in accordance with the amended plans and additional information listed in Annexure B. (3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment to the application for development consent as agreed or assessed. (4) Development Application No DA23/0169 lodged on 11 August 2022, as amended, for the subdivision of land into 18 Torrens title lots and associated site works at 64 Farnborough Drive, Moss Vale is determined by the grant of development consent subject to the conditions of consent in Annexure A. Catchwords: APPEAL – development application – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 ss 7.3, 7.12 Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021 s 4.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 Water Management Act 200 s 91 Wingecarribee Local Environmental Plan 2010, cll 2.3, 2.6, 4.1, 5.16, 7.1, 7.3, 7.10 Category: Principal judgment Parties: Baron Corporation Pty Limited (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: M Wright SC (Applicant) G Dyer (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2022/309334 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 deemed refusal by Wingecarribee Shire Council (Council) of Development Application No DA23/0169 (DA) for the subdivision of one lot into 18 Torrens Title lots with associated site works, including the removal of 34 trees. The site comprises a property known as 64 Farnborough Drive Moss Vale (being Lot 41 in DP1252867) along with certain nearby railway land which is required for stormwater management works (being Lot 1 in DP184218 and Lot 2775 in DP1212033). 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 16 October 2023. I presided over the conciliation conference. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties' decision was based on certain amendments to the plans then before the Court with respect to the appeal. Here I note that I am aware that the applicant had already sought and received leave of the Court to amend the originally filed application, after an initial round of conciliation in May 2023. 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, which I attend to below. Here I note an agreed jurisdictional statement, provided by the parties to the Court on 11 October 2023, which is intended to assist me in coming to my findings in relation to jurisdiction. Jurisdiction State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 4 ("Koala habitat protection 2021") applies to Wingecarribee local government area. In turn, s 4.9 applies to the DA as there is no koala management plan in place for the site and it currently has an area of more than 1 hectare. Under the provisions of s 4.9(3), if a consent authority is satisfied that the development is likely to have low or no impact on koalas or koala habitat, consent may be (relevantly) granted. In this instance, the parties agree that the development will have little to no impact on either koalas or koala habitat. The parties indicate this position is supported by the Biodiversity Development Assessment Report prepared by Travers Bushfire & Ecology dated 21 April 2023 (Tab 11 of Exhibit JTO-1 filed on 30 May 2023) (BDAR). I accept this advice of the parties and am satisfied that the development is likely to have low or no impact on koalas or koala habitat. 2. I accept the advice of the parties that the now repealed provisions of Chapter 8 ("Sydney Drinking Water Catchments") applies to the DA, due to savings provisions of State Environmental Planning Policy Amendment (Water Catchments) 2022. Under the provisions of s 8.8(1) 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, this is assessed using the "NorBE Tool" (s 8.8(2)). Section 8.9(1) requires the concurrence of the relevant Regulatory Authority. The parties advise that, relevantly, Water NSW granted concurrence to this proposal on 15 March 2023. For the purposes of s 8.8(2), Water NSW had undertaken an assessment using the NorBE Tool and has stated (jurisdictional statement par 33): "Based on the previous site inspection and the information provided, Water NSW considers 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." 1. On this advice, itself reliant on certain background studies accompanying the application (jurisdictional statement par 35), I am satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality, this assessed using the NorBE Tool, and that the required concurrence has been granted. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Relevant matters concerning the issue of contamination and s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 are detailed in the Preliminary Environmental Site Investigation filed with the Court on 30 May 2023. This report concludes that there were no concerns regarding use of the site for residential purposes. I am satisfied that the relevant requirements have been met in regard to s 4.6. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Chapter 2, Part 2.3, Division 15, Subdivision 2 applies as the development is adjacent to a rail corridor and has potential to have an effect on rail safety given the intended site stormwater drainage involves the rail corridor. I am aware that there has been consultation with the Australian Rail Track Corporation (ARTC) in relation to the proposed stormwater arrangements within the rail corridor. The parties advise me that the applicant has obtained written consent from ARTC to drain water across the land occupied and managed by ARTC and that proposed Condition 69 deals with the process by which further detailed approval from ARTC will be obtained to undertake the works on the land. In accord with this advice from the parties I am satisfied that the requirements are met in relation to Chapter 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021. Biodiversity Conservation Act 2016 1. The parties advise that in accordance with s 7.12(2) of the Biodiversity Conservation Act 2016 (BC Act), a consent authority must not grant consent to a development if the proposed development is likely to result in adverse impacts that affect the threatened species or ecological communities or their habitats as set out in s 7.3 of the BC Act. 2. I am advised that the site contains four threatened fauna species, one threatened flora species and one threatened ecological community (referenced at p 56 of a BDAR. The BDAR recommends measures to mitigate the potential impacts on the threated species and ecological communities (see pp 45 - 47 of the BDAR) which have been relevantly addressed in proposed consent conditions. Wingecarribee Local Environmental Plan 2010 1. The site is zoned R5 – Large Lot Residential pursuant to Wingecarribee Local Environmental Plan 2010 and I have had regard to the zone objectives mindful of cl 2.3. Subdivision is permissible with consent under cl 2.6. 2. The parties explain in the jurisdictional statement that the lots in the proposed development comply with the minimum subdivision lot size control as set out in cl 4.1, and that due consideration has been given to the provisions of cl 5.16 relating, generally, to how the development might fit in to the local setting. 3. In relation to cl 7.1, the parties have drawn to my attention: (a) the availability of vehicular access to the land, (b) the availability of public utility services to the land, and (c) the physical, geotechnical, drainage, flooding and bush fire risk characteristics of the land. In their jurisdictional statement the parties make reference to a series of studies or plans which analyse these topics (jurisdictional statement par 61). Based on this advice, including the relevant supporting documents and also mindful of the proposed conditions of consent, I am of the opinion that the site is suitable for the proposed development purposes, having regard to the matters at cl 7.1(3). In regard to cl 7.3 earthworks, I accept the advice of the parties that due consideration has been given to the matters at cl 7.3(3). 4. I am satisfied in regard to cl 7.10, based on the parties' advice that public utility infrastructure that is essential for the proposed development are already available or that adequate arrangements have been made to make that infrastructure available when it is required. Integrated development 1. The proposed development constitutes integrated development under s 4.46 of the EPA Act as, in order for it to be carried out, it requires development consent and the following approvals: 1. Rural Fires Act 1997 (RF Act) - section 100B 2. Water Management Act 2000 (WM Act) - section 91 Rural Fires Act 1997 1. The parties advise that Council has referred the DA to the NSW Rural Fire Service, which on 16 February 2023 issued general terms of approval which have been included in the proposed consent conditions. Water Management Act 2000 1. The parties advise that Council has referred the DA to Water NSW and on 15 March 2023 received its general terms of approval which have been included in the proposed consent conditions. Other considerations 1. I have given consideration generally to matters at s 4.15(1) of the EPA Act. In particular, in regard to s 4.15(1)(d), I note the advice of the parties that the DA was notified in accordance with requirements and no submissions were received with respect to that. Conclusion 1. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Orders 1. The Court orders that: 1. The appeal is upheld. 2. The Court, in exercising the functions of Wingecarribee Shire Council, as the relevant consent authority, under s 39(2) of the Land and Environment Court Act 1979, agrees, under s 38(1) of the Environmental Planning and Assessment 2021, to the applicant amending Development Application No DA23/0169 in accordance with the amended plans and additional information listed in Annexure B. 3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment to the application for development consent as agreed or assessed. 4. Development Application No DA23/0169 lodged on 11 August 2022, as amended, for the subdivision of land into 18 Torrens title lots and associated site works at 64 Farnborough Drive, Moss Vale is determined by the grant of development consent subject to the conditions of consent in Annexure A. P Walsh Commissioner of the Court ********** Annexure A Annexure B 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: 26 October 2023