Land and Environment Court New South Wales Medium Neutral Citation: Fountaindale Project Management Pty Ltd v Shellharbour City Council [2024] NSWLEC 1682 Hearing dates: Conciliation conference on 8 October 2024 Date of orders: 29 October 2024 Decision date: 29 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA0588/2021 for the demolition of existing structures, tree removal and construction of a single/two-storey, multi- dwelling housing development consisting of 48 dwellings and associated infrastructure at 32 Terry Street Albion Park, legally described as Lot 4 DP 714125, is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – multi-dwelling housing development – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 34 Water Management Act 2000 Rural Fires Act 1997 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, Sch 6, Pt 1, s 2 Shellharbour Local Environmental Plan 2013, cll 4.1A, 4.3, 4.4, 5.21, 5.22, 6.1, 6.2, 6.9 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 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 Category: Principal judgment Parties: Fountaindale Project Management Pty Ltd (Applicant) Shellharbour City Council (Respondent) Representation: Counsel: M Young (Solicitor) (Applicant) A Kliese (Solicitor) (Respondent) Solicitors: McCartney Young Lawyers (Applicant) Shaw Reynolds Lawyers (Respondent) File Number(s): 2023/247719 Publication restriction: No Judgment INTRODUCTION 1. This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application DA0588/2021, for the demolition of existing structures, tree removal, and construction of a single/two-storey, multi-dwelling housing development consisting of 48 dwellings, and associated infrastructure at 32 Terry Street, Albion Park, legally described as Lot 4 DP 714125. 2. The application was amended by leave of the Court on 20 September 2024 to address the contentions raised by the Council. 3. The Court arranged a conciliation conference within Class 1 of the Court's jurisdiction, under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 October 2024. I presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. As part of this agreement, the applicant further amended the development application to adequately respond to the Council's contentions. As the original development application was lodged on 1 October 2021, pursuant to the savings provisions at Sch 6, Pt 1, s 2 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the development. Subsequently, the amendments to the application were made pursuant to s 55 of the EPA Regulation 2000, with the agreement of the Council. Jurisdictional matters 1. A stormwater channel / first order watercourse aligns with the southern boundary of the site. Works are proposed adjacent to this watercourse as part of this application, including vegetation works in the riparian zone, and a controlled activity approval is therefore required under the Water Management Act 2000. Accordingly, the application was referred as integrated development to the Natural Resources Access Regulator, and General Terms of Approval (GTAs) were issued on 20 January 2022. These GTAs are included at Part G of the agreed conditions of consent. 2. Pursuant to the requirements of the Rural Fires Act 1997, the application was referred to the NSW Rural Fire Service, who subsequently provided recommended conditions of consent that can be found at Part G of the agreed conditions of consent. 3. The savings provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 provide that for applications submitted but not finally determined before 29 August 2022, the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 apply. The proposed development is considered 'BASIX affected development' and accordingly, the application was accompanied by a BASIX certificate. 4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) applies to the development as it has frontage to Terry Street, which is a classified road. From the parties' submissions and the following documents, I accept that the provisions of s 2.119 of the Infrastructure SEPP have been met with the proposed development: 1. The Architectural Plans by Edmiston Jones dated 27 August 2024 (the architectural plans), 2. The Civil Engineering plans by Allen Price & Scarratts Pty Ltd dated 8 September 2021 (the civil engineering plans), 3. The information contained in the Statement of Environmental Effects by Allen Price & Scarratts Pty Ltd dated 8 September 2021 (the SEE), 4. The Traffic Impact Assessment by McLaren Traffic Engineering dated 4 September 2024, 5. The Taylors Lane DA Acoustic Assessment by RWDI Australia dated 13 September 2024, 6. The Detailed Flood Study by Rienco Consulting dated 30 August 2024, and 7. The GTAs provided by Transport for NSW, which have been incorporated into the agreed conditions of consent at Part G. 1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties' submission, the Preliminary Site Investigation report prepared by Douglas Partners and dated February 2021 and the agreed conditions of consent at 35, 61 and 73, I accept that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended use. 2. Pursuant to the Shellharbour Local Environmental Plan 2013 (SLEP), the subject site is zoned R2 Low Density Residential within which development for the purposes of multi-dwelling housing is permissible with consent. The proposed development meets the objectives of the R2 zone. 3. SLEP cl 4.1A Minimum subdivision lot size for dual occupancies, multi dwelling housing and residential flat buildings applies to the proposed development, requiring a minimum lot size of 600m2. The land on which the proposed development is to be undertaken is 1.69ha, satisfying this requirement. 4. Pursuant to SLEP cl 4.3(2) Height of buildings, the maximum height of buildings permitted is 9 metres. From the architectural drawings and the parties' submission, I accept that the proposed development does not exceed this. 5. SLEP cl 4.4 sets a maximum Floor space ratio (FSR) of 0.5:1 to the site. The proposed development has an FSR of 0.34:1 and complies with this development standard. 6. The site is not included in the flood planning area mapping pursuant to SLEP cl 5.21, however based on the Detailed Flood Study by Rienco Consulting dated 30 August 2024 (the flood study) the parties agree that the site is affected by flooding and that the provisions of cl 5.21 apply. From the parties' submission, the flood study, the civil engineering plans, the architectural plans, and the agreed conditions of consent, I accept that the matters listed in cl 5.21(3) have been considered, and that the requirements of cl 5.21(2) are met with the proposed development. 7. SLEP cl 5.22 provides additional 'special flood considerations' that apply to development on land that, in the event of a flood, may cause a particular risk to life and require the evacuation of people for other safety considerations. From the parties' submissions, and the information listed in relation to SLEP cl 5.21, I accept that a 'shelter in place' strategy can be safely achieved, but further that a safe evacuation route is provided via Terry Street. I further accept that the development will be constructed with minimal adverse effect to the environment in the event of a flood. Accordingly, I accept that the provisions of SLEP cl 5.22 are satisfied to the extent that they are relevant to this application. 8. Pursuant to SLEP cl 6.1, the site is not mapped as containing Acid Sulfate Soils or within 500m of land containing Acid Sulfate Soils, and this clause is therefore not further enlivened. 9. SLEP cl 6.2 sets out matters that must be considered when deciding whether to grant development consent for earthworks. This application proposes earthworks and, from the parties' submission and the information contained in the civil engineering plans, the SEE and the Integrated Water Cycle Management Strategy by Allen Price & Scarratts dated 1 September 2024, I accept that these matters have been considered and the application is acceptable pursuant to cl 6.2. 10. SLEP cl 6.9 requires the consent authority to be satisfied that the necessary essential services are available, or that adequate arrangements have been made to make them available when required. From the parties' submission, the information contained in the SEE, the architectural plans and the civil engineering plans, I accept that the essential services listed in cl 6.9 can be provided, and in particular, that the contention of suitable vehicle access has been resolved by the amended application and agreed conditions of consent 11 and 76. Conclusion and Orders 1. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. Shellharbour City Council, as the relevant consent authority, has approved, under clause 55 of the Environmental Planning and Assessment Regulation 2000, the applicant amending Development Application DA0588/2021 in accordance with the documents listed below: 1. BASIX Certificate number 1224752M_06 issued 4 October 2024. 2. NatHERS Certificate number 0006533310 dated 4 October 2024. 1. The Court orders: 1. The appeal is upheld. 2. Development Application DA0588/2021 for the demolition of existing structures, tree removal and construction of a single/two-storey, multi- dwelling housing development consisting of 48 dwellings and associated infrastructure at 32 Terry Street Albion Park, legally described as Lot 4 DP 714125, is approved subject to the conditions at Annexure A. E Washington Commissioner of the Court 247719.23 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: 29 October 2024