Land and Environment Court New South Wales Medium Neutral Citation: Site Investments Pty Limited v Albury City Council [2023] NSWLEC 1686 Hearing dates: Conciliation conference held on 10 November 2023 Date of orders: 15 November 2023 Decision date: 15 November 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA 10.2023.39970.1, as amended, seeking construction of ancillary structures and earthworks related to an existing dwelling on Lot 102 Deposited Plan 1264791, also known as 87 Kookaburra Way, East Albury is determined by the grant of consent, and subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – construction of ancillary structures – earthworks – conciliation conference – agreement between the parties – orders Legislation Cited: Albury Local Environmental Plan 2010, cl 2.3 Biodiversity Conservation Act 2016, Sch 1, Pt 2, Div 1, s 7.3 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Land and Environment Court Act 1979, ss 34, 34AA, 39 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Albury Development Control Plan 2010 Category: Principal judgment Parties: Site Investments Pty Limited (Applicant) Albury City Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Reid (Respondent) Solicitors: Pikes & Verekers Lawyers Kell Moore File Number(s): 2023/216065 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application DA 10.2023.39970.1 by Albury City Council (the Council) seeking construction of ancillary structures and earthworks related to an existing dwelling on Lot 102 Deposited Plan 1264791, also known as 87 Kookaburra Way, East Albury (hereafter the site). Background 1. Development Application DA 10.2023.39970.1 (the DA) was lodged with Council on 6 February 2023, with 22 written submissions received during the notification period. 2. After internal review, the DA was refused, as determined on 26 June 2023. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing without an onsite view at the request of the parties, and before myself as Duty Commissioner. 4. The Council agreed for the Applicant to amend the application, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 5. The amended DA seeks consent for: 1. the erection of the following ancillary buildings and works to the approved development: 1. a shed; 2. two crossovers on the northern boundary and one crossover on the eastern boundary; 3. a driveway; 4. off-street parking areas; 5. landscape; 6. a pickle ball court; 7. a sauna; 8. a cabana; 9. a swimming pool, and 1. an expanded area of fill beyond the earthworks approved by DA 10.2004.25432.3 (a previous consent for the site). 1. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and that the relevant issues raised by the adjoining residents have been considered. 2. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 39 of the LEC Act and determine pursuant to s 4.16 of the EPA Act, after being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA 10.2023.39970.1, subject to conditions in Annexure A. Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied: 1. Biodiversity Conservation Act 2016 (BC Act): 1. The site has been identified as having suitable habitat for the Sloane's Froglet, a listed endangered species under Sch 1, Pt 2, Div 1 of the BC Act. Section 7.3 of the BC Act establishes the factors to address the Test of Significance. 2. The DA is supported by a Test of Significance assessment, prepared by Biodiversity Australia, dated 4 April 2023 and the Sloane's Management Plan, prepared by Biodiversity Australia, dated 15 September 2023. The sufficiently DA addresses any potential for direct and indirect impacts. 1. Albury Local Environmental Plan 2010 (ALEP): 1. Pursuant to cl 2.3 of the ALEP, the proposed development is situated over land zoned C3 Environmental Management. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the C3 zone. 2. The amended application is supported by relevant plans and documents that consider the relevant objectives, aims, standards and provisions of the ALEP. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The site has historically been used as farmland and the Council is satisfied there are no records of contamination relating to the site. Council has appropriately considered the contamination status of the site, which satisfies the relevant requirements of s 4.6 of the SEPP Resilience. The material used in the earthworks is considered in the conditions of consent. 1. Albury Development Control Plan 2010 (ADCP): 1. The original application was publicly notified in accordance with the ADCP. The 22 submissions received have been considered in the Council's merit assessment of the application, and where appropriate, issues are addressed. 1. With regards to Council's merit assessment, the relevant requirements of the ADCP are generally complied with, as described in the amended plans, supporting documents to the application and the conditions of consent. 2. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the application. Grant of consent 1. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA 10.2023.39970.1 should be determined by the grant of consent, as it satisfies the relevant requirements of s 4.15(1) of the EPA Act and the BC Act. 4. As the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 5. The Court notes that: 1. The Albury City Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA 10.2023.39970.1, as described below: Site Plan – Fill Areas Plan No. 594 A0-12 Revision E prepared by Andrew Halstead Architect, dated September 2023; Civil Engineering Drawings prepared by ACOR Consultants, dated 12 September 2023 as follows: Drawing No. Description C2.01 Issue G Bulk Earthworks Plan C2.02 Issue G Site Sections C3.01 Issue G Site Layout Plans Sloane's Froglet Management Plan Revision 6 prepared by Biodiversity Australia, dated 15 September 2023. Letter of Compliance with Clause 5.21 of the Albury Local Environmental Plan 2010, prepared by ACOR Consultants, dated 15 September 2023 1. The Applicant has filed the amendments to the Development Application DA 10.2023.39970.1 with the Court on 26 October 2023. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA 10.2023.39970.1, as amended, seeking construction of ancillary structures and earthworks related to an existing dwelling on Lot 102 Deposited Plan 1264791, also known as 87 Kookaburra Way, East Albury is determined by the grant of consent, and subject to the conditions set out in Annexure A. S Bish 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: 15 November 2023