Land and Environment Court New South Wales Medium Neutral Citation: Jelenkovic v Eurobodalla Shire Council [2019] NSWLEC 1035 Hearing dates: Conciliation conference on 24 January 2019 Date of orders: 30 January 2019 Decision date: 30 January 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [9] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Eurobodalla Local Environment Plan 1987 Eurobodalla Local Environment Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 44—Koala Habitat Protection Category: Principal judgment Parties: Bill Jelenkovic (Applicant) Eurobodalla Shire Council (Respondent) Representation: Counsel: S Nash (Applicant) Solicitors: Planning Development Commercial Lawyers (Applicant) S Nevin, Sparke Helmore Lawyers (Respondent) File Number(s): 2018/193637 Publication restriction: No Judgment 1. COMMISSIONER: Bill Jelenkovic (the Applicant) has appealed the deemed refusal of Eurobodalla Shire Council (the Respondent) of his development application (DA 459/18) for construction of a two storey residential dwelling at Runnyford (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court's jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 24 January 2019, and I presided over the conciliation conference. 4. 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 and granting consent to the development application, subject to conditions. 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. The Parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties have identified the jurisdictional prerequisites of relevance in these proceedings, and the basis upon which satisfaction is has been reached on each, to be as follows: 1. EPA Act s 4.14 concerning consultation and development consent on certain bushfire prone land, and in relation to which: 1. the Applicant has provided a certificate by a person who is recognised by the NSW Rural Fire Service (RFS) as a qualified consultant in bushfire risk assessment stating that the development conforms to the relevant specifications and requirements; 2. Council has referred the application to the RFS and received recommended conditions (which have been incorporated into the conditions of consent set out in Annexure "A" to this agreement); 1. Schedule 1 of the EPA Act concerning community participation requirements, and in relation to which: 1. Council advised that while its Advertisement and Notification Code (Code) applies to the development, development for the purpose of a dwelling house is not identified in Clause 3.2 of the Code as development required to be advertised or notified unless that development does not comply with a Development Control Plan (DCP) or is, in the opinion of the Council likely to have a detrimental impact on adjoining properties. 2. there is no DCP chapter that applies to the development and the Council did not form the requisite view that the proposed development would have a detrimental impact. The minimum public exhibition periods prescribed in cl 7 of Sch 1 of the Act do not yet apply as the Council has not yet prepared and published its first community participation plan (see cl 16(2) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017); 1. Section 7.7 of the Biodiversity Conservation Act 2016 concerning biodiversity assessment for Part 4 developments (other than State significant development or complying development), and in relation to which: 1. the Applicant has filed and served a Biodiversity Development Assessment Report (BDAR) (and the conditions of consent set out in Annexure "A" to this agreement that require the retirement of credits in accordance with the BDAR); 1. Clause 7 of the State Environmental Planning Policy No 44—Koala Habitat Protection (SEPP 44) concerning its so-called 'Step 1', and the question 'Is the land potential koala habitat?' and in relation to which: 1. the Parties submit that they are satisfied that the Subject Site does not contain potential koala habitat, as confirmed in Part 5.2 of the BDAR; 1. Clause 10 of concerning matters to be considered in determining development applications for rural subdivisions or rural dwellings, and in relation to which: 1. the Parties submitted that they are satisfied that the matters in cl 10(3) have been considered and taken into account in the determination of the proposed development; 1. relevant clauses within the Eurobodalla Local Environment Plan 2012 (ELEP), as follows: 1. Clause 2.1 concerning land use zones and the Land Use Table, and in relation to which: 1. The proposed development is permissible with consent; 1. Clause 4.2A concerning the erection of dwelling houses or dual occupancies on land in Zone RU1 Primary Production, and in relation to which: 1. the land on which the dwelling house is proposed to be erected is indicated to has a dwelling entitlement on the Dwelling Entitlements Map within ELEP; 1. Clause 6.6 concerning biodiversity, and in relation to which: 1. the Applicant filed and served an updated Flora and Fauna Assessment and a Biodiversity Development Assessment Report; and 2. the parties' ecology experts confirmed that they were satisfied that the jurisdictional test under clause 6.6 of ELEP was satisfied; 1. Clause 6.7 concerning riparian lands and watercourses, and in relation to which: 1. the Applicant had filed and served an updated Flora and Fauna Assessment and Biodiversity Development Assessment Report; and; 2. the Parties' experts were satisfied that the jurisdictional tests under clause 6.7 was satisfied; 1. Clause 11 of Eurobodalla LEP 1987, concerning the zoning of of land, and in relation to which: 1. the proposed development is permitted with consent on land zoned 1(a) under this LEP. 1. Based on the above, 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. 2. 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. 3. The Court orders: 1. The Appeal is upheld. 2. Development Application No. 459/18 for the erection of a two-storey residential dwelling on land at 46 Runnyford Road, Runnyford, is approved subject to the conditions set out in Annexure "A" to this agreement. ………………………. Michael Chilcott Commissioner of the Court 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: 01 February 2019