Bluestone Capital Ventures No. 1 Pty Ltd v The Minister for Planning [2018] NSWLEC 1676

Land and Environment Court New South Wales

Medium Neutral Citation: Bluestone Capital Ventures No. 1 Pty Ltd v The Minister for Planning [2018] NSWLEC 1676 Hearing dates: Conciliation conference on 21 & 28 November 2018; 13 December 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Class 1 Before: Smithson C Decision: See [21] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Land and Environment Court Act 1979 Texts Cited: Guidelines for riparian corridors on waterfront land (NSW Office of Water) Category: Principal judgment Parties: Bluestone Capital Ventures No. 1 Pty Ltd (Applicant) The Minister for Planning (Respondent) Representation: Counsel: M Staunton (Respondent)

Solicitors: S Puckeridge, Lindsay Taylor Lawyers (Applicant) Department of Planning & Environment (Respondent) File Number(s): 2018/154506 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Bluestone Capital Ventures No. 1 Pty Ltd (the applicant). It is lodged pursuant to the former Part 3A, s 75W(5) provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act). These provisions still apply under savings provisions found at Schedule 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (the Regulation). 2. The appeal is against the refusal of a modification application (referred to as MOD 5 or the application) lodged with the Department of Planning and Environment (DPE) under former s 75W. The application seeks to modify the Instrument of Approval (IOA) issued in August 2012 for a development lodged and approved under the former Part 3A of the EPA Act by the Planning Assessment Commission (PAC) as delegate of the Minister for Planning (the respondent). Such developments are now referred to as 'transitional Part 3A projects' as defined at Schedule 2 of the Regulation given Part 3A has since been repealed. 3. The IOA approved a Concept Plan (MP 10_0229) for a mixed use town centre adjoining Woolooware Bay across a number of sites with an address of 455-475 Captain Cook Drive, Woolooware (the site). The overall development of the site under the approved Concept Plan comprises mixed high rise residential and commercial development integrated with upgrades to the Cronulla Sutherland Leagues Club and Sharks Stadium (Shark Park), and associated works. The IOA has been the subject of several prior modifications. 4. MOD 5 sought to modify the Landscape Master Plan approved as part of the Concept Plan to clarify that limited non-riparian uses were permitted within the required 40m setback from the Woolooware Bay foreshore and to amend condition B2 of Schedule 2 of the IOA in order to permit these uses, as well as to exclude the 'Family Hill" area of Shark Park from the riparian corridor. 5. The proposed uses sought in the 40m setback included an all-abilities playground, provided in partnership with the Touched by Olivia foundation, (the playground), shared pedestrian and cycle pathways, emergency vehicle access, Ausgrid crane pads for servicing, and turfed areas for passive recreation. Other miscellaneous planting works were also proposed. 6. MOD 5 was publicly exhibited by DPE with submissions received from Sutherland Shire Council (the Council), the Office of Environment and Heritage (OEH), the Department of Primary Industries (DPE), and 12 members of the public. The submissions raised issues with the width of the riparian buffer, structures within it, and potential impacts on native flora and fauna. 7. In response to the submissions, various amendments were made to MOD 5 and renotified on several occasions with further submissions received. The PAC ultimately approved MOD 5 in March 2018 subject to conditions. 8. The appeal seeks the deletion of conditions B2a), b) and c), and B5 of the MOD 5 approval. In essence, these conditions specify what uses are permitted, and what plantings are required, and where, within the riparian corridor setback area. Relocation of the playground is also sought. 9. Specifically, condition 2a) requires proposed turfed area in the western precinct to the north of the residential precinct to be deleted and replaced with riparian plantings. Condition 2b) requires non-riparian landscaping adjacent to a retail entry to be deleted and replaced with riparian plantings in conjunction with a connecting path from the retail entry to a shared pathway with a small area of native turf provided on either side of the pathway to delineate the entry. Condition 2c) requires the shared pathway, viewing platforms on Family Hill and emergency vehicle access to be in the outer vegetated riparian zone subject to offsetting in accordance with NSW Office of Water 'Guidelines for riparian corridors on waterfront land' (the Guidelines). 10. Condition B5 requires the applicant to investigate alternative sites for the proposed playground which are away from transmission lines and outside the riparian corridor in a publicly visible and accessible location. 11. In lodging the appeal, the applicant contended, in summary, that: 1. The playground should be retained in the location shown on the final landscape plans and condition B5 deleted as it would prevent delivery of the playground which could not be delivered in any other location. The condition was unreasonable and would result in the loss of the playground which was of public benefit to the local and broader community. 2. The location of the playground is appropriate notwithstanding it will be situated under power lines and within an Ausgrid easement. 3. The proposed turfed areas should be retained in the locations shown as they were shown there on the final Landscape Plans, with condition B2a) requiring their relocation therefore deleted. 4. The retail entrance landscaping was shown on the final Landscape Plans and therefore condition B2b) should be deleted as it requires the removal of this landscaping. 5. The access path along the northern end of Family Hill should be retained in the location shown on the Landscape Concept Plans and therefore condition B2c) should be deleted. This condition requires the path's relocation into, rather than adjoining, Family Hill, which is an integral part of Shark Park. 1. The Court arranged conciliation conferences under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which were held on 21 and 28 November, and 13 December, 2018. I presided over those conciliation conferences. 2. The conciliation commenced on site where the Court and the parties, including their experts, viewed the site and heard from the Council and the mother of a disabled child, whose focus was on the proposed playground. The Council indicated they were supportive of the all-abilities playground and did not have the funds to provide such a facility. The mother indicated that there was a significant demand for such facilities, with families of disabled children, particularly children in wheelchairs, travelling significant distances to access them. Accordingly, any location was preferable to no playground being provided. She therefore supported the applicant's provision of the playground. 3. Following conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved an alternative site for the playground being agreed by both parties as well as agreement on the location of works and plantings within the corridor, including the relocation of the path outside Family Hill. Modifications to the approved conditions of consent in dispute were therefore made in the agreement accordingly. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 5. In this regard, the parties' decision involves the Court exercising the review function under the former s 75W(5) of the EPA Act as saved under Schedule 2 of the Regulation. Section 75W enabled Part 3A projects to be modified as MOD 5 sought. On the repeal of Part 3A from the EPA Act, transitional provisions applied under the Regulation to enable transitional Part 3A projects to continue to be modified, subject to conditions, following the repeal of Part 3A. 6. Section 75W(5) provided applicants with the power to appeal to the Court a determination by the Minister (in this instance delegated to the PAC) to modify a Part 3A approval. That appeal right is saved by the Regulation at Schedule 2, cl 3(2)(b). 7. The Regulation at cl 3BA of Schedule 2 establishes cut-off dates by which modifications can be made to transitional Part 3A projects. However at 3BA(5), an approved Concept Plan may continue to be modified under s75W after the cut-off dates if the Minister is satisfied that: 1. the proposed modification is to correct a minor error, 2. the proposed modification is of minimal environmental impact, or 3. the project to which the Concept Plan as modified relates is substantially the same as the project which the Concept Plan currently relates, including any modifications previously made under s75W. 1. On the basis of the advice from the parties, and noting that delegation was provided by the PAC to the DPE to enter into the agreement on behalf of the Minister, I am satisfied that the amendment sought to the conditions in the s75W modification consent as per the agreement will result in a modification of minimal environmental impact and in the project remaining substantially the same as the project to which the approved Concept Plan currently relates. In essence, this is because the modifications only relate to specific landscaping works within a whole town centre development, and have been made having particular regard to their environmental impacts. 2. On this basis, the preconditions to the grant of the appeal are met. Therefore, I am satisfied that the parties' decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act . 3. Accordingly, the Court orders that: 1. The appeal is upheld; 2. Pursuant to s75W of the Environmental Planning and Assessment Act 1979, Concept Approval MP10_0029, granted by the Planning Assessment Commission on 27 August 2012 (as amended), is modified in accordance with the modification to conditions set out in Annexure "A"; 3. As a consequence of order 7(b) above, Concept Approval MP10_0029 is now subject to the consolidated conditions set out in Annexure "B"; and 4. No order as to costs. ………………………. Jenny Smithson Commissioner of the Court Annexure A (65.4 KB, pdf) Annexure B (239 KB, 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: 21 December 2018