Land and Environment Court New South Wales Medium Neutral Citation: Northern Rivers Surveying Pty Ltd trading as Northern Rivers Land Solutions v Ballina Shire Council [2020] NSWLEC 1101 Hearing dates: Conciliation conference on 12 February 2020 Date of orders: 05 March 2020 Decision date: 05 March 2020 Jurisdiction: Class 1 Before: Bish C Decision: Refer to paragraph [19] Catchwords: MODIFICATION APPLICATION – staged residential subdivision – amend conditions of previous consent - conciliation conference – agreement between the parties – orders DEVELOPMENT APPLICATION – bulk earthworks – staged residential subdivision - conciliation conference – agreement between the parties – orders Legislation Cited: Ballina Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Texts Cited: Ballina Shire Development Control Plan 2012 Category: Principal judgment Parties: Northern Rivers Surveying Pty Ltd trading as Northern Rivers Land Solutions (Applicant) Ballina Shire Council (Respondent) Representation: Counsel: A Hemmings (Applicant) J Reid (Respondent) Solicitors: Holding Redlich (Applicant) Allens (Respondent) File Number(s): 2019/193652; 2019/195374 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal (2019/195374) against the deemed refusal of Development Application (DA) 2018/616 by the Ballina Shire Council (hereafter the Council) for bulk earthworks including cut and fill to create drainage reserves, sediment control, retaining walls and building pads. 2. A separate appeal (2019/193652), heard together with the above appeal, is against the deemed refusal of Modification Application (MA) (DA 2016/184/4) by the Council for changes to conditions of consent as approved under consent DA 2016/18, for a staged residential development. 3. The appeals relate to ten allotments, hereafter the 'site', including: Lot 146 DP 1234492, also known as Unara Parkway, Cumbalum; Lot 20 DP 1022777, also known as 52 Albert Sheather Lane, Cumbalum; Lots 2 and 3 DP 823662, Lot 3 DP 517149, Lots 150 and 333 DP 755684, also known as Sandy Flat Road, Cumbalum; Lot 1 DP 11253494, Lot 30 DP 1223594 and Lot 2 DP 1213872, also known as Ballina Heights Drive and 658 Tamarind Drive, Cumbalum. 4. The Class 1 appeals are made under ss 8.7 and 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), for the DA and MA respectively. 5. The Court agreed to the parties request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), on 12 February 2019, in Court. I was the Commissioner for the conciliation. The Court had previously commenced hearing the appeals, which were vacated when agreement was reached and filed with the Court. There were no resident submissions at the conciliation or hearing. 6. Based on the amended plans, together with the supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the appeals proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved for both appeals, and that there were no submissions by objectors from notification/s of the DA or the MA. The decision of the parties is to uphold the appeals, and grant consent to both the MA (DA 2016/184/4) and DA 2018/616, with conditions. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. 8. The parties' decision is one that satisfies the Court to exercise its function under s 4.56(1) of the EPA Act (as the original consent was granted by the Court) to grant consent to the MA (DA 2016/184/4) with conditions, as described in Annexure 'B'. 9. Further to this, the parties' decision also involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 2018/616 with conditions, as described in Annexure C. 10. The parties identified the jurisdictional prerequisites of particular relevance in the MA and DA appeal proceedings, as consistency with the EPA Act and the Ballina Local Environmental Plan 2012 (BLEP). In addition, the Ballina Shire Development Control Plan 2012 (BSDCP) is of consideration to grant consent. 11. The parties agree that the proposed modification of DA 2016/184, as proposed in the MA is substantially the same as originally approved. DA 2016/184 was originally granted by the Court. Therefore, s 4.56(1)(a) of the EPA Act is satisfied by the proposed modification of relevant conditions of consent. Further to this, the parties agree that the notification of the MA was made consistent with the requirements of the BSDCP, and therefore satisfies the requirements of s 4.56(1)(b) of the EPA Act. As no submissions were received during the notification period, the parties agree ss 4.56(1)(c) and (d) are not relevant for the Courts consideration. 12. The proposed (and amended) development is located across a number of zones, including RU1 Primary Production, RU2 Rural Landscape, R2 Low Density Residential and R3 Medium Density Residential Zones. The proposed (and amended) development is permissible in these zones and satisfies the objectives of the zones. 13. The parties agree that the relevant provisions of the BLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. Based on the supporting documents to the DA, there are unlikely to be any significant adverse impacts as a result of the proposed development, and the requirements of the BLEP are satisfied. 14. The parties agree that there are no unreasonable impacts as a result of the proposed development (DA). Based on the amended plans and conditions of consent, the relevant controls as specified in the BSDCP are satisfied. 15. The parties agree that the DA was publicly notified in accordance with the BSDCP. During the notification period for this DA under appeal, no submissions in objection were received by Council. 16. The amended plans that the Court grants leave to rely on have been considered in the context of the site and previous consents for the staged residential development on the site. Based on the amended plans and supporting documents, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties for both appeals. 17. I am satisfied that there are no jurisdictional impediments to this agreement, therefore the MA (DA 2016/184/4) and DA 2018/616 should be granted, as it satisfies the requirements of ss 4.56(1) and 4.15(1) of the EPA Act, respectively. 18. 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. 19. The Court orders: Appeal number 2019/00193652 (Modification Application 3, DA 2016/184/4) 1. The appeal is upheld. 2. The Court grants leave to the Applicant to rely upon the amended plans and documents listed in Annexure 'A'. 3. Development consent 184 of 2016 (DA 2016/184/4) for the staged residential development of land around Mitchell Close, Albert Sheather Lane, Sandy Flat Road, Ballina Heights Drive and Tamarind Drive, Cumbalum is modified pursuant to section 4.56 of the Environmental Planning and Assessment Act 1979 as set out in the conditions in Annexure 'B'. Appeal number 2019/00195374 (Bulk Earthworks DA 2018/616) 1. The appeal is upheld. 2. The Court grants leave to the Applicant to rely upon the amended plans and documents listed in Annexure 'A'. 3. That development consent is granted to development application 616 of 2018 (DA 2018/616) for bulk earthworks and stockpile (including cut and fill, temporary sediment and erosion control basins, stockpiling of materials, retaining walls and building pads) associated with the subdivision consented to under DA 2016/184 subject to the conditions in Annexure 'C'. 4. The applicant is to pay the Council's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $63,500 in full and final settlement in satisfaction of all costs thrown away in these proceedings resulting from all amendments in these proceedings. ………………………… Sarah Bish Commissioner of the Court Annexure A (40.6 KB) Annexure B (185 KB) Annexure C (196 KB) ********** 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: 05 March 2020