Land and Environment Court New South Wales Medium Neutral Citation: Southern Highlands Developments Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1095 Hearing dates: Conciliation conference on 20 and 21 February 2024 Date of orders: 7 March 2024 Decision date: 07 March 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order. (2) The appeal is upheld. (3) Development application number DA2023/1247, as amended, for construction of a new four (4) bedroom attached dual occupancy with attached double garage, alterations and additions to the existing dwelling (cottage) and new detached double garage and strata subdivision into two strata lots at Lot 1 in Deposited Plan 741837, commonly known as 4 Myrtle Street, Bowral 2576, is determined by the grant of development consent subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions – dual occupancy – heritage – conciliation conference – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.61, 6.63, 6.64 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 Wingecarribee Local Environmental Plan 2010 cll 4.1, 4.2E, 4.2F, 5.10, 7.1, 7.3 and Sch 5 Category: Principal judgment Parties: Southern Highlands Developments Pty Ltd (Applicant) Wingecarribbee Shire Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) D Loether (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2023/225012 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA2023/1247. The development application seeks development consent for the construction of an attached dual occupancy with attached double garage, alterations and additions to the existing dwelling (cottage) and new detached double garage and strata subdivision into two strata lots (DA) at Lot 1 in Deposited Plan 741837 known as 4 Myrtle Street, Bowral 2576 (site). 2. The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the applicant amending development application DA2023/1247 in accordance with the documents listed at [22] (amended application). The main amendments can be summarised as follows: * Change from Torrens title subdivision to strata subdivision; * Detailed design changes in relation to heritage; * Changes to the front landscaped area. 1. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 and 21 February 2024. I have presided over the conciliation conference. 2. At 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 involved the Court upholding the appeal for the amended application and granting development consent to the amended application subject to conditions. 3. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 4. 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. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. Jurisdictional Prerequisites 1. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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 set out below. 2. I am satisfied that owners consent accompanied the development application. 3. The development application was lodged to the respondent on 9 May 2023. The respondent notified the development application between 15 May and 29 May 2023. Three submissions were received. The written concerns raised are summarised below: * Heritage impacts including adjoining properties; * Compatibility with the heritage item and local area; * Scale of the proposal; * Appropriateness of large dual occupancy developments for heritage items and heritage conservation areas; * Consistency of lot size; and * Information on the history of Alf Stephens & Sons. 1. As the parties have entered into an agreement, the parties have considered the concerns raised. Wingecarribee Local Environmental Plan 2010 1. The site is zoned R3 Medium Density Residential under the Wingecarribee Local Environmental Plan 2010 (WLEP). The proposed development for a dual occupancy is permitted with consent and I have had regard to the objectives of the zone. 2. The parties agree and I accept that the following applicable WLEP provisions are met: 1. Clause 4.1 minimum subdivision lot size requires a minimum lot size of 700m2. The survey plan prepared by RHCO Surveying and Development Consultants (survey plan) dated 25 March 2021 details the lot size as 1624m2. 2. Clause 4.2E requires a minimum lot size of 1,000m2. The site complies, at 1624m2. 3. Clause 4.2F requires a minimum subdivision lot size for dual occupancies on R3 zoned land. Each lot must be 50% of the minimum lot size, a minimum of 600m2, not result in more than one dwelling per lot and each lot will be serviced by water and sewerage. On the basis of the survey plan, architectural drawings at [22] and the conditions of consent at Annexure A, I am satisfied the provisions of Clause 4.2F have been satisfied. 4. Clause 5.10 heritage conservation applies to the site. In accordance with sch 5, the site is mapped within the Bowral Heritage Conservation Area. The amended application has been considered by the parties' heritage experts with further details included as conditions of consent at Annexure A. Within the heritage joint expert report, the heritage experts have agreed that the revised design responds appropriately to the existing dwelling and the Bowral Heritage Conservation Area; and will not adversely impact the heritage significance of the area. 5. Clause 7.1 applies to the amended application and provides further minimum lot size requirements that are consistent with those considered above regarding cl 4.1. 6. Clause 7.3 earthworks applies to the amended application. The amended application is accompanied by stormwater management plans, architectural plans and a waste management plan which address the provisions. Appropriate conditions of consent are also included within Annexure A. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The development application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead. 2. The parties agree and I am satisfied that the amended application is accompanied by amended BASIX Certificates (1353503S_04 and A479655_04) that meet the provisions of SEPP BASIX. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the amended application. 2. Chapter 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.61, 6.63 and 6.64 apply as the site is located within the Sydney Drinking Water Catchment. I have considered the Statement of Environmental Effects prepared by The Architecture Company Pty Ltd dated 17 March 2023 (SEE), stormwater management plans, stormwater joint expert report, the Neutral or Beneficial Effect Assessment and Summary (NorBE documentation), conditions of consent at Attachment A and detailed jurisdictional statement. The parties agree and I accept that the amended application satisfies the provisions within Ch 6. On this basis, I am satisfied that concurrence is not required in accordance with s 6.64(4). State Environmental Planning Policy (Resilience and Hazards) 2021 1. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application is accompanied by an SEE which states that the site has a history of residential use with no known history of contamination activities occurring on site. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed. Conclusion 1. As the parties' decision 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. 4. The Court notes: 1. That the respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA2023/1247 in accordance with the documents listed below: Plan Name Drawing number Revision Date Prepared by Amended Architectural Plans Site Analysis Plan A02 D 20/02/2024 the architecture company pty ltd Lower ground floor plan A03 J 21/02/2024 the architecture company pty ltd Ground floor plan A04 K 21/02/2024 the architecture company pty ltd Upper ground floor plan A05 K 21/02/2024 the architecture company pty ltd Roof plan A06 J 21/02/2024 the architecture company pty ltd Elevations/sections 01 A07 I 21/02/2024 the architecture company pty ltd Elevations/sections 02 A08 J 21/02/2024 the architecture company pty ltd BASIX Commitments A09 D 22/02/204 the architecture company pty ltd Colour scheme site data plans A10 C 19/02/2024 the architecture company pty ltd Fence details A12 A 07/02/2024 the architecture company pty ltd Strata title plan A13 B 07/02/2024 the architecture company pty ltd Rear fence details A14 B 20/02/2024 the architecture company pty ltd Amended Stormwater Plans Standard Notes and Drawing List SW1 B 02.24 Woolacotts Consulting Engineers Stormwater Management Plan – Ground Floor SW2 C 02.24 Woolacotts Consulting Engineers Stormwater Management Plan – Lower Ground Floor SW3 D 14.02.24 Woolacotts Consulting Engineers Stormwater Management Plan – Downstream SW4 A 02.24 Woolacotts Consulting Engineers Stormwater Details – Sheet 1 SD1 B 02.24 Woolacotts Consulting Engineers Stormwater Details – Sheet 2 SD2 A 12/12/23 Woolacotts Consulting Engineers Lot A Catchment Plans CP1 B 02.24 Woolacotts Consulting Engineers Lot B Catchment Plans CP2 B 02.24 Woolacotts Consulting Engineers Lot A MUSIC Catchment Plan MP1 B 02.24 Woolacotts Consulting Engineers Lot B MUSIC Catchment Plan MP2 B 02.24 Woolacotts Consulting Engineers Erosion & Sediment Control Plan and Details ES1 B 02.24 Woolacotts Consulting Engineers Amended Landscape Plans Landscape Plan – Lower Ground Floor Plan 22-4588 L01 B 19.02.2024 Zenith Landscape Designs Landscape Plan – Ground Floor Plan 22-4588 L02 B 19.02.2024 Zenith Landscape Designs Landscape Plan – Upper Ground Floor Plan 22-4588 L03 B 19.02.2024 Zenith Landscape Designs Landscape Plan 22-4588 L04 B 19.02.2024 Zenith Landscape Designs Reports Amended Arboricultural Impact Assessment prepared by Arboriculture Consultancy Australia dated 14 February 2024 BASIX Certificate Lot A 4 Myrtle St Bowral, Certificate No. 1353503S_04, prepared by Gradwell Consulting dated 22 February 2024 BASIX Certificate Lot B 4 Myrtle St Bowral, Certificate No. A479655_04, prepared by Gradwell Consulting dated 22 February 2024 Orders: 1. The Court orders: 1. The applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order. 2. The appeal is upheld. 3. Development application number DA2023/1247, as amended, for construction of a new four (4) bedroom attached dual occupancy with attached double garage, alterations and additions to the existing dwelling (cottage) and new detached double garage and strata subdivision into two strata lots at Lot 1 in Deposited Plan 741837, commonly known as 4 Myrtle Street, Bowral 2576, is determined by the grant of development consent subject to the conditions in Annexure A. S Porter 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: 07 March 2024