Land and Environment Court New South Wales Medium Neutral Citation: Benaughton Calderwood Pty Ltd v Shellharbour City Council [2024] NSWLEC 1271 Hearing dates: Conciliation conference 30 April 2024, final submissions 16 May 2024 Date of orders: 22 May 2024 Decision date: 22 May 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is allowed to file the amended application, and the Applicant is to pay the First Respondent's costs thrown away as a result of the amendment, as agreed or assessed. (2) The appeal is upheld. (3) Development Application 0557/2017, which seeks consent for the demolition of existing residential and farm structures; subdivision of the site into 223 residential lots with roads, open space, riparian corridors and drainage reserves over 6 stages; location / conceptual configuration for a combined District and Local Park; tree removal; remediation of the site; and Bulk earthworks and civil engineering works, including roadworks, drainage, utilities and riparian corridor works and associated landscape works at 128 North Macquarie Road, Calderwood (Lot 100 in DP 1251724) is determined by the grant of consent, subject to the conditions of consent in Annexure B. Catchwords: APPEAL – land subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, ss 7.7, 7.13 Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47, 8.7, 8.15, 75O Fisheries Management Act 1994, s 201 Land and Environment Court Act 1979, s 34 National Parks and Wildlife Act 1974, s 90 Rural Fires Act 1997, s 100B Water Management Act 2000, s 91 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, Sch 2, cl 3B Environmental Planning and Assessment Regulation 2000, cl 55 State Environmental Planning Policy (Precincts - Regional) 2021, Appendix 5, ss 17, 17A, 26, 27, 28, 30 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122 State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023 Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Category: Principal judgment Parties: Benaughton Calderwood Pty Ltd (Applicant) Shellharbour City Council (First Respondent) Lendlease Communities (Calderwood) Pty Ltd (Second Respondent) Representation: Counsel: P Tomasetti SC (Applicant) A Seton (Solicitor) (First Respondent) T March (Second Respondent) Solicitors: HWL Ebsworth (Applicant) Marsdens Law Group (First Respondent) Addisons (Second Respondent) File Number(s): 2022/134288 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal was lodged by the Applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns development application DA/0577/2017 (DA). The DA seeks consent for land subdivision and associated development on Lot 100 in DP 1251724, also known as 128 North Macquarie Road, Calderwood (site). 2. The DA was refused by Shellharbour City Council (First Respondent) on 15 October 2021. On 10 May, the Applicant commenced Class 1 Appeal proceedings against the First Respondent. On 13 October 2022, Lendlease Communities (Calderwood) Pty Ltd was joined as a party to the proceedings (Second Respondent). Context 1. The site falls within the area covered by Calderwood Concept Plan No. MP 09­_0082 (Concept Plan), which was issued by the Minister for Planning subject to modifications and Future Environmental Assessment Requirements (FEARs) on 8 December 2010 under s 75O of the EPA Act, (Concept Plan Approval). 2. The Concept Plan Approval granted consent for some 4800 dwellings, 50 hectares of mixed‑use development, open space, land for environmental protection purposes and associated infrastructure. The proposal 1. The DA falls within the Concept Plan Approval confines and seeks consent for the demolition of existing residential and farm structures, subdivision of the site into 223 residential lots with roads, creation of open space, riparian corridors and drainage reserves, all over 6 stages. In addition consent is sought for the location and conceptual configuration for a combined district and local park, certain tree removal and site remediation. Further, consent is sought for bulk earthworks and civil engineering works, including for roadworks, drainage, utilities and riparian corridor works and associated vegetation management and landscape works. Conciliation and agreement between the parties 1. After very considerable prior dialogue between the parties over time, at the parties' request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 30 April 2024, and I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, subject to conditions. 2. 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. Jurisdiction 1. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor [2023] NSWCA 183 (McMillan) at [65]). Ultimately, I find that there are none. But there are certain statutory queries 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 statement received by the Court on 30 April 2024 (jurisdictional statement) and supplemented by further advice dated 6 May 2024 (supplementary jurisdictional note) and 16 May 2024 (further supplementary jurisdictional note). Jurisdictional considerations Integrated development 1. The parties advise that the DA is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal would also require approvals under: 1. Section 91 of the Water Management Act 2000, in relation to the need to obtain a controlled activity approval from the Natural Resource Regulator for works within waterfront land. 2. Section 100B of the Rural Fires Act 1997, in relation to the need to obtain a bush fire safety authority from Rural Fire Service. 3. Section 90 of the National Parks and Wildlife Act 1974, in relation to the need to obtain an Aboriginal heritage impact permit from Heritage NSW within the Department of Climate Change, Energy, the Environment and Water. 4. Section 201 of the Fisheries Management Act 1994, in relation to the potential need to obtain a permit to carry out dredging or reclaimation work from the Department of Primary Industries. 1. Under s 4.47(3), a development consent, as granted, must be consistent with any general terms of approval (GTA) nominated by the relevant approval body. 2. The advice of the parties is that the provisions of s 4.47(3) have been complied with. The GTAs from each of the four authorities are referenced at Part H of the proposed conditions of consent (provided at Annexure B to this judgment), with the nominated obligation that requirements as documented "must be complied with at all times". Consistency with Concept Plan 1. The parties advise that as the site is land the subject of the Concept Plan, cl 3B(2)(d) of Schedule 2 of Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 applies, which states: a consent authority must not grant consent under Part 4 (of the then EPA Act) for the development unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan. 1. The parties advise that the development as proposed is generally consistent with the terms of the approval of the applicable Concept Plan. The parties' jurisdictional statement provides a working through of the relevant provisions of the Concept Plan, including in regard to certain approved (and specified) modifications to the Concept Plan. I have considered the Concept Plan and the parties' response to it and find that I am satisfied that the development is generally consistent with the terms of the approval of this Concept Plan. Of particular note are the following. 2. Condition A2 is concerned with development being in accordance with various nominated plans and documentation related to the Concept Plan, and as relevantly amended. The parties' jurisdictional statement and supplementary note explains the various modifications that have occurred to plans and documentation. It is submitted that the DA is in accordance with these as it will (supplementary jurisdictional note par 1): "a) deliver an integral element of the approved residential dwellings / yield (and is consistent with the footprint of development identified in the Concept Approval) b) deliver open space (and is consistent with the number of parks and the sqm areas identified in the Concept Approval); c) protect the areas identified as environmentally sensitive lands (consistent with the plans incorporated in the Concept Approval); d) deliver internal roads and service infrastructure (generally consistent with indicative layouts identified in the Concept Approval); and e) contribute towards community facilities (consistent with the approach identified in the Concept Approval). In this regard, the Applicant has: i) entered planning agreements with the Minister and Wollongong City Council; ii) provided the First Responded with an irrevocable letter of offer to enter a planning agreement (see Condition B1 of the proposed Conditions of Consent); and iii) entered an Agreement with the Second Respondent in relation to, amongst other things, its share of contributions not otherwise included in the planning agreements." 1. In the supplementary jurisdictional note, the parties further advise that the DA "is generally consistent with the Concept Approval and generally in accordance with the (relevant) Environmental Assessment Report and its recommendations." I accept the advice of the parties that the proposal is generally consistent with plans and documentation applicable to Condition A2. 2. Condition B5 is concerned with open space and requires that the DA be generally consistent with the Public Domain Report Calderwood Concept Plan MP09_0082 MOD 4 PPR prepared by Taylor Brammer Architects and dated 31 May 2019. Contentions had been raised in relation to this question initially, including in regard to the intended combined local and district park within the site. The First Respondent, informed by expert advice, has ultimately concluded that the DA, as amended, satisfies this requirement, now in agreement with the other parties. I accept this position. 3. There are no lots proposed below the minimum lot size as required by Condition B6. This is demonstrated in the Subdivision Layout Plan prepared by Stantec dated 13 March 2024, referred to at Condition A3 of the proposed conditions of consent. 4. The parties advise that Condition B7, concerning consolidation and land ownership for riparian corridor and environmental reserve land, has been considered and the required arrangements are in place, as explained as follows (supplementary note par 2): "The agreement between the Applicant and Second Respondent achieves the purpose of Condition B7 as it provides a mechanism to ensure that Environmental Reserve Land and/or Environmentally Significant Land (Environmental Land) owned by the Applicant and Second Respondent will be consolidated and managed. Condition F1 also achieves the purpose of Condition B7 as a positive covenant to be placed on the land will not only require the Environmental Land owning by the Applicant and Second Respondent be consolidated, but also the consolidation of the Environmental Land held by the Applicant and the registered proprietor of Lot 42 DP 878122, being the southwestern most corner of the CUDP. Condition F1 and the agreement between the Applicant and the Second Respondent ensures that the Environmental Land will be consolidated and not be fragmented, achieving the purpose of Condition B7." 1. I accept this advice in relation to Condition B7. 2. The parties advise that the required staging plan has been provided which demonstrates orderly and coordinated development of the site, in accordance with Condition C1. The reference plan is the General Arrangement Layout Plan Sheets 1 to Sheet 10 (Rev 8, dated 13 April 2024), as referred to at proposed Condition A3. 3. Condition C3 is concerned with ecology and biodiversity and management-related concerns. The Applicant has provided a Vegetation Management Plan prepared by Ecoplanning dated 26 March 2024. The parties advise that this, relevantly, addresses the requirements of Condition C3, in that it (supplementary note par 2): "… addresses the management of the Environmental Land and the restoration of the Environmental Land to include improve its condition, improve riparian zones to buffer the watercourses from impacts from the surrounding land (i.e. reduce nutrient rich runoff), and to increase the complexity of habitat in subject Environmental Land for macroinvertebrates, terrestrial fauna and platypus." 1. The parties make clear that the agreement between the Applicant and Second Respondent provides for the consolidation and ongoing management of the environmental land. On the parties' advice, I am satisfied that the proposal is generally consistent with the terms of Condition C3. 2. In relation to Condition C5 and the traffic assessment, the parties advise the required detailed traffic assessment has been submitted and satisfactory plans are in place in relation to required infrastructure. I accept this advice. It will be seen that TfNSW has expressed satisfaction with the proposal on traffic grounds, subject to conditions (see [30]). 3. During conciliation, the parties took me to the responses from each of the relevant servicing authorities. Mindful of Condition C11, I am satisfied that utility requirements have been determined in consultation with Sydney Water. I also accept the advice of the parties that adequate arrangements are in place for other public utility infrastructure essential for the proposed development. 4. The requirements of Conditions C12(a)-(c), which requires the provision of local infrastructure, have been satisfied by way of the Letter of Offer and draft Voluntary Planning Agreement between the Applicant and the First Respondent, being "Annexure B" to the s 34 Agreement documentation as provided to the Court and as referenced at proposed consent condition B1 (Annexure B); 5. The parties advise, and I accept, that the proposal is generally consistent with Condition C12(d) of the Concept Plan Approval, concerned with the upgrade of a certain length of Calderwood Road. The parties advise that, as far as is relevant for this DA's assessment, the Applicant and Second Respondent have entered a commercial agreement which has a concern with the future provision of the road, with the Applicant making the required commitment to its share of the reconstruction of Calderwood Road. 6. There are two parts to Condition C16. The parties advise: (1) conditions of consent will ensure building envelopes above the Probable Maximum Flood Level will be available for all lots (noting Conditions B1A, F7(b), F7(c) in relation to Lots 2009 and 2010), and (2) that there is the required enabling of emergency access through provision of the new bridge over Macquarie Rivulet, designed such that the deck (roadway) is above the PMF flood level. I am satisfied with respect to both having considered and accepted the parties' advice. 7. The above findings mean I can conclude that the proposed development is generally consistent with the applicable Concept Plan Approval. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Section 2.119 applies to the DA, as the site has a frontage to a classified road. In turn the provisions of s 2.119(2) apply. The matter of traffic safety and efficiency of movement has been given considerable attention in this proposal. I am satisfied in relation to the provisions of subs 2.119(2)(a) and (b), relying on the (conditional) acceptance of the proposal by TfNSW. I am also satisfied in relation to subs 2.119(2)(a), mindful of the parties' advice of the the First Respondent's acceptance of a related traffic noise assessment (Road Traffic Noise Impact Assessment prepared by SLR Consulting dated 1 December 2022), compliance with which is included in consent conditions (proposed condition A3). 2. Section 2.122(4) also applies which requires referral to TfNSW and consideration of comments. The parties advise that requested conditions from TfNSW have been included in the proposed conditions, and that the otherwise provsions of s 2.122(4) have been taken into consideration. State Environmental Planning Policy (Precincts - Regional) 2021 1. Appendix 5 relates to Calderwood and applies to the evaluation of the DA. 2. There is no concern with the proposal's permissibility, with demolition and subdivision permissible with consent under ss 17 and 17A. The parties also advise that the proposal does not breach any development standards in Appendix 5. 3. Part of the site is at or below the nominated flood planning level, triggering s 26. Subsection 26(3) lists certain "satisfaction" requirements. The parties have referred me to a document titled Water Cycle Management Study prepared by Stantec dated 7 September 2023, which in part addresses the topic. I have also reviewed the Flood Impact Assessment and Flood Addendum Letter prepared by J Wyndham Prince dated 11 April 2023 and 1 May 2023 respectively, which also assisted. Compliance with each of these reports is a requirement under proposed Condition A3. In addition, the inclusion of proposed Condition B12A, as explained in the parties' further supplementary jurisdictional note, has positioned things such that parties' relevant experts advise that they are directly satisfied with regard to each of the provisions at s 26(3). On this advice, I accept that each of the relevant matters are satisfied. 4. Section 27 has, among others, an objective to conserve places of Aboriginal heritage significance. Subsection 27(6) lists certain notification and consideration requirements. The parties advise that these requirements have been satisfied. They referred me to the Aboriginal Cultural Heritage Assessment Report prepared by Kelleher Nightingale Consulting Pty Ltd dated 28 September 2023 (also referenced at Condition A3 of the proposed consent conditions). This work did identify four Aboriginal archaeology sites in the study area. I accept the advice of the parties that the required notification of local Aboriginal communities and consideration of responses has been undertaken and there has been an appropriate consideration of effects on places of Aboriginal heritage significance has been undertaken. I also note that, having regard to this topic, Heritage NSW within the Department of Climate Change, Energy, the Environment and Water has issued general terms of approval for the associated Aboriginal heritage impact permit, as appended to the proposed consent conditions (Annexure B Part H, Agency Approvals). 5. Section 28 provides that consent must not be granted unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make the infrastructure available when required. During conciliation the parties took me to the particulars of the provision strategy relating to relevant essential services and I am satisfied on that front. 6. The parties advise that the now otherwise repealed provisions of s 30, relating to arrangements for designated State public infrastructure, continue to apply to the DA (due to savings provisions in State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023). However, I am informed by the parties that the requirements of s 30(3) are satisfied in relation to the site the subject of the DA. According to the parties, this is because on 9 October 2019, the delegate of the Secretary certified that satisfactory arrangements had been made for designated State public infrastructure in relation to the site. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Chapter 4 applies in relation to the remediation of contaminated land. The DA is accompanied by a Remedial Action Plan prepared by Sydney Environmental Group dated 11 April 2023. The Remedial Action Plan assessed the site's contamination profile and concluded that the site can be made compatible with the proposed residential use in accordance with certain recommendations. The proposed conditions reference the requirement to comply with the Remedial Action Plan (proposed conditions A3, B23, D14). The requirements of s 4.6 have been met. Biodiversity Conservation Act 2016 1. Under s 7.7, if a proposal is likely to significantly affect threatened species, the DA is to be accompanied by a biodiversity development assessment report. In this instance, the parties advise that part of the site is affected by the Macquarie Rivulet, which is included on the Biodiversity Values Map (BV Map) published by the Department of Planning and Environment and the DA is accompanied by the Biodiversity Development Assessment Report, prepared by Ecoplanning dated 14 December 2023 (BDAR). 2. Under s 7.13, a consent authority is to take into consideration the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report. The parties advise that this has occurred. I have also reviewed the BDAR and observe the suggested approach to address points raised by the First Respondent's experts. It is clear enough that the principle of avoidance has been adopted to an extent but I also note that entry into the Biodiversity Offsets Scheme is proposed with nominated ecosystem credit obligations established. Proposed Condition A3 establishes a requirement to comply with the BDAR. Proposed Condition B17 establishes more particular requirements relating to the retirement of biodiversity offset credits. The requirements of s 7.13 have been met. Other considerations 1. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. 2. Earlier in the judgment, reference is made to contact with various state agencies in relation to referral, concurrence or integrated development requirements. 3. The DA was also subject to public notification a number of times, mindful of the various amendments to the DA over time. The parties have advised me of the feedback from this notification process, including in the formal reference to objections in the First Respondent's filings in the proceedings. Here I note in particular the First Respondent's Further Amended SOFAC filed 12 February 2024 which synthesised concerns raised during the number of public exhibitions of the proposal. I have also been advised how objections have been given consideration and how that process brought about further investigations and certain of the amendments which have occurred to the proposal. I note this advice of the parties and it seems to me that the requirements of s 4.15(1)(d) of the EPA Act have also been satisfied. Conclusion 1. Based on the above reasoning, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, 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 assessment of the merits of the proposal generally. Notation 1. The Court notes that the First Respondent, as the relevant consent authority under clause 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the Development Application (DA 0557/2017) for which consent is sought in accordance with the documents described in Annexure A of this judgment. Orders 1. The Court orders: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is allowed to file the amended application, and the Applicant is to pay the First Respondent's costs thrown away as a result of the amendment, as agreed or assessed. 2. The appeal is upheld. 3. Development Application 0557/2017, which seeks consent for the demolition of existing residential and farm structures; subdivision of the site into 223 residential lots with roads, open space, riparian corridors and drainage reserves over 6 stages; location / conceptual configuration for a combined District and Local Park; tree removal; remediation of the site; and Bulk earthworks and civil engineering works, including roadworks, drainage, utilities and riparian corridor works and associated landscape works at 128 North Macquarie Road, Calderwood (Lot 100 in DP 1251724) is determined by the grant of consent, subject to the conditions of consent in Annexure B. P Walsh Commissioner of the Court 134288.22 Annexure A 134288.22 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: 22 May 2024