Land and Environment Court New South Wales Medium Neutral Citation: Newton Denny Chapelle v Byron Shire Council [2024] NSWLEC 1189 Hearing dates: Conciliation conference 2 April 2024 Date of orders: 16 April 2024 Decision date: 16 April 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 No 10.2021.114.1, as amended, for the demolition of existing structures, vegetation removal and the construction of 3 buildings to be used for the purposes of a light industry (excluding artisan food and drink premises) with at-grade parking for 21 vehicles on the land at 467 Federal Drive, Federal is determined by the grant of development consent subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – light industry - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, Sch 6 s 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Byron Local Environmental Plan 2014, cl 2.7, 4.3, 5.10, 6.2, 6.4, 6.5, 6.6 Category: Principal judgment Parties: Newton Denny Chapelle (Applicant) Byron Shire Council (Respondent) Representation: Counsel: R Wilcher (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Keypoint Law (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/68084 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 refusal of development application 10.2021.114.1 (DA). The development application sought consent for the demolition of existing structures, vegetation removal, earthworks and construction of three buildings for the purposes of light industry (excluding artisan food and drink premises) with car parking, wastewater treatment and stormwater works at 467 Federal Drive, Federal and legally described as Lot 10 DP 790360 (site). 2. The Court notes that the Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) to the Applicant amending DA 10.2021.114.1 in accordance with the documents listed below, subject to the exclusion detailed at [3] (amended DA): Plan No. Revision No. Plan Title Drawn by Dated SK-01 G Pre Development Plan Floodworks 29/02/24 SK-02 MUSIC Catchment Plan SK-03 Operational Control Plan SK-04 Operational Control Plan Typical Section 1. The Court notes that any works shown on the plans that are located outside of the subject site do not form part of the amended DA. These works pertain to stormwater works within the easement and Council road reserve. I accept the agreed submissions of the parties in the jurisdictional statement that the works outside of the site and their impacts have been adequately considered and separate approvals have been lawfully included within the conditions of consent at Annexure A. 2. The matter was set down for a hearing on 2 and 3 April 2024. Upon the request of the parties, the Court arranged a further conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 April 2024. I have presided over the conciliation conference. 3. 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 DA and granting development consent to the amended application subject to conditions. 4. 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. 5. 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. 6. 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 Class 1 application. 3. The DA was lodged to the Respondent on 26 February 2021. Due to the lodgement date, EPA Reg 2000 applies as stipulated by the savings provision of s 3 of sch 6 of the Environmental Planning and Assessment Regulation 2021. 4. The Respondent notified the DA between 8 March 2021 to 21 March 2021. 213 submissions were received, with 61 in support and 152 objections. 5. The Respondent notified amended plans and information between 17 November 2023 and 1 December 2023. 58 submissions were received, with 16 in support and 42 objections. 6. The Court notes that at the 14 December 2023 Byron Shire Council meeting (Council meeting), the Council considered a report on this appeal. The minutes of the Council meeting reflect that Council heard from speakers who were opposed to the DA. Ultimately, Council resolved to authorise the General Manager to enter into a s 34 conciliation agreement subject to various considerations. 7. As the parties have entered into an agreement, Council, as the consent authority, have considered the concerns raised. Byron Local Environmental Plan 2014 (BLEP) 1. The site is zoned RU5 Village under the BLEP. The proposed development for light industry 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 BLEP provisions are met: 1. Clause 2.7 demolition requires consent, as sought by the amended DA. 2. Clause 4.3 sets a maximum building height of 9m. The architectural plans prepared by U+I Building Studio accompanying the amended DA (architectural plans), drawings DA 31-33, demonstrate that the amended application is below 9m. 3. Clause 5.10 heritage conservation applies to the site. In accordance with sch 5, the site is located opposite two local heritage items, item I113, the School of Arts, and I114, the Holy Trinity Anglican Church. The DA was accompanied by a Statement of Environmental Effects prepared by Newton Chapelle dated February 2021 (SEE). The SEE outlines consideration of cl 5.10 on the basis of a heritage impact report prepared by Weir Phillips Heritage, which considered the potential impacts from the DA. I accept that the parties have adequately considered the provisions of cl 5.10. 4. Clause 6.2 earthworks applies to the amended application. The amended DA is accompanied by architectural plans, waste management plans and SEE which address the provisions. Appropriate conditions of consent are also provided within Annexure A, including sediment and erosion control. 5. Clause 6.5 in relation to drinking water catchments applies, as the site is located within the catchment area shown in the associated map. The amended DA is supported by a Stormwater Management Plan Report prepared by Floodworks dated 8 January 2024, wastewater letters prepared by Whitehead & Associates Environmental Consultants dated 3 September 2023 and 9 January 2024, Wastewater and Stormwater Management letter prepared by Martens & Associates Pty Ltd dated 20 November 2023 and documentation described at [2]. With consideration of the above and the conditions of consent at Annexure A, I accept the parties' agreement that cl 6.5 has been adequately considered (cl 6.5(3)) and satisfied (cl 6.4(4)). 6. Clause 6.6 applies to the amended DA. I accept the parties' submissions within the jurisdictional statement, supporting documentation referred to in relation to cl 6.5 above and the conditions of consent within Annexure A, that the provisions have been satisfied and will be available to the development. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) 1. Section 2.48 of SEPP TI applies to the DA. Essential Energy did not object to the DA and their comments have been included as 'advisory notes' in Annexure A. I accept that the provisions of s 2.48 have been met. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) 1. The provisions of s 4.6 of SEPP RH apply to the site. The DA is accompanied by a SEE which considered a Stage 1 Preliminary Contamination Assessment prepared by Environmental Consulting Services (contamination report). The SEE states that the contamination report found that the potential contaminants found on site were below the site criteria and the site is suitable for the proposed development. Accordingly, I accept the parties agreement that the provisions of s 4.6 of SEPP Resilience and Hazards have been satisfied. 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. 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 No 10.2021.114.1, as amended, for the demolition of existing structures, vegetation removal and the construction of 3 buildings to be used for the purposes of a light industry (excluding artisan food and drink premises) with at-grade parking for 21 vehicles on the land at 467 Federal Drive, Federal is determined by the grant of development consent subject to the conditions at Annexure A. S Porter Commissioner of the Court ********** Annexure A Amendments 26 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), the case title is amended to reflect correct name of the parties. 20 May 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), the case title is amended to reflect correct name of the parties. 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: 20 May 2024