Land and Environment Court New South Wales Medium Neutral Citation: Reid v Wingecarribee Shire Council [2019] NSWLEC 1036 Hearing dates: Conciliation conference on 25 January 2019 Date of orders: 05 February 2019 Decision date: 05 February 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [8] below Catchwords: DEVELOPMENT APPLICATION: Seniors housing development application; conciliation conference; agreement between the parties; orders Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy (Sydney Water Drinking Catchment) 2011 State Environmental Planning Policy No 44 – Koala Habitat Protection Wingecarribee Local Environmental Plan 2010 Category: Principal judgment Parties: Denise Reid (Applicant) Wingecarribee Shire Council (Respondent) Representation: Solicitors: C Shaw, Shaw Reynolds Lawyers (Respondent) Other: D Reid, litigant in person (Applicant) File Number(s): 2017/385003 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the actual refusal of its development application DA/17/0756. As lodged the application sought consent for: demolition of the existing dwelling and construction of a seniors living development comprising six dwellings and associated parking. The application has since been formally amended and consent is sought for five dwellings. The development is proposed at 21-23 Payten Street, Mittagong (Lots C and D in DP 373343). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 6 June 2018. This conference was terminated as agreement was unable to be reached between the parties at that time. After the amendment of the development, with the consent of the parties, a further conciliation conference was listed and held on 25 January 2019. I presided over that conciliation conference. 3. Prior to the second conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 4. A number of residents addressed the Court at the conciliation conference. I confirmed for those objectors the role of the Court in executing a conciliated agreement, noting that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision, if I am satisfied it is lawful to do so having taken into consideration their submissions (s 4.15(1)(d) EPA Act). 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. Whilst the application was lodged pursuant to the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, the parties acknowledge and I concur that the policy does not apply to the land as it falls within the exclusions being 'Environmentally sensitive land' under Schedule 1 of the instrument. 2. Accordingly the development is proposed under the provisions of the Wingecarribee Local Environmental Plan 2010. The proposed development is permissible in the R2 Low Density Residential zone and the Respondent accepts that the development is consistent with the objectives of this zone. Development for seniors housing is permissible in the zone with consent. The site is not subject to development standards for height or floor space ratio and is not a heritage item or within a heritage conservation area. 3. State Environmental Planning Policy (Sydney Water Drinking Catchment) 2011 applies to the development. Clause 10 of this instrument provides that a consent authority must not grant consent unless it is satisfied that the carrying out of proposed development would have a neutral or beneficial effect on water quality. Pursuant to cl 11 of the instrument the application requires concurrent of Water NSW. This concurrence was provided on 11 December 2018 and concludes that the 'development has been assessed by Water NSW as being able to achieve a neutral or beneficial effect on water quality provided appropriate conditions are included in any development consent and are subsequently implemented'. The conditions appended to the concurrence letter are incorporated in the consent at condition 89. 4. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged for each of the proposed dwellings. 5. State Environmental Planning Policy No 44 – Koala Habitat Protection applies to the site. The applicant has filed an ecological report prepared by Dr Steven Douglas of Ecological Surveys and Planning. That report concludes that the site is not potential or core koala habitat as defined by this instrument, thus satisfying cl 7(1) and (2) of the instrument. 6. The development has received the General Terms of Approval from the Rural Fire Service (s 4.5 of the EPA Act) and their conditions are incorporated in the attached conditions (refer to Conditions 2.4 and 2.5). The parties have reached agreement on the terms of an 88E instrument under the Conveyancing Act 1919 which will ensure the property is managed as an inner protection area. The RFS has clarified in correspondence that there is no reliance in issuing the s100B certificate on the management of property outside the subject land. 7. The application has been notified in accordance with the relevant development control plan and the submissions have been considered. 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, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The Applicant is granted leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application: Plan Title/ Supporting Document Reference/ version Prepared By Dated Site Plan – General DC-01 Issue X.2 Black Cow Studio 19.12.18 Site Plan – Ground DC-02 Issue X.2 Black Cow Studio 19.12.18 Site Plan – Roof DC-03 Issue X.2 Black Cow Studio 19.12.18 Plans and Elevations Typical Residences 1,2,4 and 5 DC-04 Issue X.2 Black Cow Studio 19.12.18 Plans and Elevation Residence 3 DC-05 Issue X.2 Black Cow Studio 19.12.18 Elevations – Summary DC-06 Issue X.2 Black Cow Studio 19.12.18 Payten St. Streetscape DC-07 Issue X.2 Black Cow Studio 19.12.18 Sections DC-08 Issue X.2 Black Cow Studio 19.12.18 BASIX summary DC-09 Issue X.2 Black Cow Studio 19.12.18 Window Schedule DC-10 Issue X.2 Black Cow Studio 19.12.18 Landscape Plan – Site Analysis LPDA 18-252-1 Revision H Conzept Landscape Architects 03.10.18 Landscape Plan LPDA 18-252-1 Revision H Conzept Landscape Architects 03.10.18 Landscape Plan and Detailed Specification LPDA 18-252-2 Revision D Conzept Landscape Architects 19.07.18 Statement of Environmental Effects SEE Payten Street Seniors Housing LEP Planning June 2017 Access Review Australian Access and Building Solutions July 2018 Bushfire Report B183187-2 Australian Bushfire Protection Planners Pty Limited 26 June 2018 Restriction on the use of land by a prescribed authority Section 88E(3) Conveyancing Act 1919 Denise Reid December 2018 Stormwater Management plan 2331smp Harris Environmental Consulting 3 December 2018 Arboricultural Assessment Impact report 01232DA Nicholas Ford, Canopy Tree 7.10.2018 BASIX Certificate Number for Residence 1_02 827317S-02 Lenard Anderson 6 December 2018 BASIX Certificate Number for Residence 2_02 827317S-02 Lenard Anderson 6 December 2018 BASIX Certificate Number for Residence 3_02 827317S-02 Lenard Anderson 6 December 2018 BASIX Certificate Number for Residence 4_02 827317S-02 Lenard Anderson 6 December 2018 BASIX Certificate Number for Residence 5_02 827317S-02 Lenard Anderson 6 December 2018 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent's costs in the amount of $20,000, inclusive of GST, to be paid on the exchange of the agreement. 2. The Appeal is upheld. 3. Development consent is granted to Development Application No. DA/17/0756 for the demolition of an existing dwelling house and the construction of a seniors living development of five dwellings at Lot C and D DP373343, 21-23 Payten St Mittagong, subject to the conditions of consent annexed hereto and marked 'A'. ………………………. D M Dickson Commissioner of the Court Annexure A ******** Amendments 18 February 2019 - Correction to Cover Sheet 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: 18 February 2019