Leslie v Wollongong City Council [2020] NSWLEC 1146

Land and Environment Court New South Wales

Medium Neutral Citation: Leslie v Wollongong City Council [2020] NSWLEC 1146 Hearing dates: Conciliation conference on 17 December 2019; 13 February 2020; 27 February 2020; 20 March 2020 Date of orders: 27 March 2020 Decision date: 27 March 2020 Jurisdiction: Class 1 Before: Adam AC Decision: See orders at [12] below Catchwords: DEVELOPMENT APPLICATION – five lot Torrens title subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1977 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 71—Coastal Protection Water Management Act 2000 Wollongong Local Environmental Plan 2009 Category: Principal judgment Parties: Simon Leslie (First Applicant) Jed Gilmore (Second Applicant) Theodore Van Der Pavert (Third Applicant) Wollongong City Council (Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicants) J Reilly (Solicitor) (Respondent)

Solicitors: Planning Law Solutions (Applicants) Wollongong City Council (Respondent) File Number(s): 2019/100858 Publication restriction: Nil

Judgment 1. COMMISSIONER: This appeal concerns a development application DA 2017/1666 for a five lot Torrens title subdivision of Lot 2 DP 1190689, 10 Hillside Crescent, Stanwell Park, NSW 2058. The appeal was lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Court exercises the functions of the consent authority in the appeal, and has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EP&A Act. 2. The Court arranged a conciliation conference under s 34 (1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. The conciliation conference commenced on site on 17 December 2019 and was adjourned to subsequent telephone mentions. I presided over the conciliation conference. 3. 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. The decision agreed upon is for the Court to uphold the appeal and for the development consent to be granted subject to conditions pursuant to s 4.16(1) of the EP&A Act. 4. The development proposed is integrated development. I note that approval has been obtained from: 1. The NSW Natural Resources Access Regulator (NRAR) 1. A Controlled Activity Approval (CAA) was issued by NRAR on 23 July 2017 under the Water Management Act 2000. The CAA forms part of the Notice of Determination 1. NSW Rural Fire Service (RFS) 1. Pursuant to s 100B of the Rural Fires Act 1977 a Bush Fire Safety Authority was issued by the RFS on 27 February 2020 and forms part of the Notice of Determination. 1. The application is for subdivision, even though indicative building envelopes are shown on the plans, no construction of buildings is proposed. Applications for development consent for buildings would be made on a lot by lot basis at some time in the future. 2. As the presiding Commissioner, I am satisfied that the decision to grant development consent subject to conditions of consent is a decision 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. 3. The proposal does not involve any breach of a numerical standard within the Wollongong Local Environmental Plan 2009 (WLEP). Mr Mantei drew my attention to the Statement of Environmental Effects (SEE) prepared by Steven Layman Consulting and filed on 1 April 2019. This document explained how the various applicable provisions of WLEP were satisfied. 4. The SEE also explained why the proposal was considered to be consistent with State Environmental Planning Policy No 71—Coastal Protection. 5. In regard to State Environmental Planning Policy No 55—Remediation of Land, I am satisfied that the conditions of consent requiring the uncontrolled fill on the site to be excavated and removed, and be replaced by controlled fill are appropriate, and that there are no other contamination issues which would prevent approval being granted. 6. Having reached a state of satisfaction that the decision is one that the Court could make, s 34(3)(a) of the LEC Act requires me to 'dispose of the proceedings in accordance with the decision'. The LEC Act also requires me 'to set out in writing the terms of the decision' (s 34(3)(b)). 7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the developed application against the discretionary matters that may have arisen pursuant to an assessment under s 4.15 of the EP&A Act. 8. The Court orders that: 1. Leave is granted to rely on the following documents that are the subject of development application DA 2017/1666: Document Reference Document Name Prepared by Revision 1167.01 Site Plan Develop My Land L 1167.02 Landscape Concept Plan Develop My Land K 1167.03 Proposed Building Restriction Zone Develop My Land G