Land and Environment Court New South Wales Medium Neutral Citation: Brojas Pty Ltd v Shoalhaven City Council [2024] NSWLEC 1162 Hearing dates: Conciliation conference held on 04 December 2023 Date of orders: 09 April 2024 Decision date: 09 April 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application No DA21/2319 seeking consent for the demolition of existing structures, removal of 6 trees and construction of multi-dwelling housing comprising 10 x 3 bedroom dwellings and associated earthworks, landscaping and strata title subdivision at 22-24 Osborne Street, Nowra is determined by granting development consent subject to the conditions set out in Annexure A. (3) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 of $7,500 including GST within 21 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2000, cl 55 Shoalhaven Local Environmental Plan 2014, cll 2.6, 7.11 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 4.6 Texts Cited: Shoalhaven Development Control Plan 2014 Category: Principal judgment Parties: Brojas Pty Ltd (First Applicant) Holeshot Pty Ltd (Second Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: M Evans (Solicitor) (Applicants) A Foley (Solicitor) (Respondent) Solicitors: Whiteacre Legal (Applicants) Marsdens Law Group (Respondent) File Number(s): 2023/260457 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA21/2319 (DA) by Shoalhaven City Council (Council). 2. The DA, as amended, seeks consent for the demolition of existing structures, removal of 6 trees and construction of multi dwelling housing comprising 10 x 3 bedroom dwellings and associated earthworks, landscaping and strata title subdivision at 22-24 Osborne Street, Nowra (site). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 4 December 2023. After more time was given an agreement was reached between the parties 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 and granting consent to the DA, as amended, in accordance with agreed conditions. 2. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. Pre-requisites to the exercise of the function to grant development consent 1. There are certain statutory pre-requisites which require attention before this function can be exercised by the Court. I attend to the relevant matters below assisted by the advice in the parties' agreed "jurisdictional note" received by the Court on 21 March 2024. Shoalhaven Local Environmental Plan 2014 1. The site is zoned MU1 – Mixed Use under the applicable Shoalhaven Local Environmental Plan 2014 (SLEP). The proposed multi dwelling housing is a use which is permissible with consent in this zone. Strata subdivision is permissible under cl 2.6, I note that the parties believe the proposal, as amended, meets the MU1 zone objectives. 2. I note and accept the advice of the parties that the proposal does not breach any development standards under SLEP. 3. Clause 7.11 requires a finding of satisfaction on the part of the consent authority that certain services that are essential for the proposal are available or that adequate arrangements have been made to make them available when required. The parties have made clear that the required services are available in this existing suburban setting. I accept this advice. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The parties advise that s 2.10 of the State Environmental Planning Policy (Resilience and Hazards) 2021 applies as the site falls within a coastal environment area. I have considered the potential impacts at cl 2.10(1). I accept the advice of the parties, and am satisfied that the proposal as amended, in this setting and with the conditions as proposed, has been designed, sited and will be managed to avoid such impacts. 2. For the purpose of s 4.6, and in relation to contamination and remediation, the parties advise that professional evaluation has concluded the site to be suitable for the proposal. I accept this advice. Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979 1. The parties have advised me that no submissions were made following notification of the proposal. 2. The parties also advised me of their consideration of Shoalhaven Development Control Plan 2014 and that the proposal was generally compliant or otherwise satisfactory in their considered view. Conclusion 1. I am satisfied that pre-requisites to the exercise of the function to grant development consent in accordance with the parties' agreement have been met. It follows that 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. Notations 1. With respect to the amendments of the DA, the Court notes that: 1. The applicant has amended Development Application No DA21/2319 with the agreement of the respondent, Shoalhaven City Council, as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 to rely on the following amended plans and documents. Document Revision/Date Item 1. Architectural Plans Rev A / B 27.11.2023 / 24.01.2024 2. Stormwater Design Plans Rev C 24.01.2024 3. Landscape Plans Issue I 24.01.2024 4. Traffic Swept Path Assessment 24.01.2024 5. BASIX Certificate #1223413M_05 15.03.2024 1. The applicant has filed the amended plans and documents with the Court. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development application No DA21/2319 seeking consent for the demolition of existing structures, removal of 6 trees and construction of multi-dwelling housing comprising 10 x 3 bedroom dwellings and associated earthworks, landscaping and strata title subdivision at 22-24 Osborne Street, Nowra is determined by granting development consent subject to the conditions set out in Annexure A. 3. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 of $7,500 including GST within 21 days of the date of these orders. .………………………… P Walsh Commissioner of the Court Annexure A (316136, 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: 09 April 2024