Benima Pty Ltd v Wollondilly Shire Council

Catchwords: APPEAL – development application – stage 1 of a concept development consent – modification application concerning concept development consent – conciliation conference – agreement reached in both matters – orders made

Legislation Cited: Biodiversity Conservation Act 2016, ss 7.4, 7.17
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.7, 8.9
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 37, 38, 113
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, Pts 4.2, 6.2, ss 4.9, 6.6, 6.7, 6.9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Wollondilly Local Environmental Plan 2011, cl 7.9

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Benima Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation: Counsel:
B Salon (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
ZBA Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/437868, 2024/437903

Publication restriction: Nil

Judgment

1. COMMISSIONER: Before the Court are two appeals that relate to the staged carrying out of development for the purpose of a cemetery at 430-490 Douglas Park Drive, Douglas Park. The concept development consent, DA/2018/1, was granted on 13 August 2020 and provides the concept approval for the cemetery (concept consent). One of the appeals before the Court relates to a development application for the carrying out of the first stage of the development, which is the erection of a fence for flora and fauna protection (the DA appeal) (2024/437903). The other appeal concerns an application to modify the concept consent (the modification appeal) to reflect changes to the alignment of the fence and to change the staging details so that only matters relevant to the Stage 1 fence are required to be addressed in Stage 1. Each appeal was lodged following the expiry of the period after which an application is deemed to be refused. The DA appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and the modification appeal is lodged pursuant to s 8.9. The final orders made on each appeal, outlined in [13] and [15] below, are made as a result of agreements between the parties that were reached following a conciliation conference.

2. In both matters, 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 13 February 2025. I presided over the conciliation conference.

3. Following the conciliation conference, in each appeal an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

The modification appeal (proceedings 2024/437868)

4. The agreement in the modification appeal was filed on 15 April 2025, and follows the Council’s approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments to the application are consequential to the changes made to the design and location of the Stage 1 Flora and Fauna fence the subject of the DA appeal, which is primarily set out in the amended Plan of Site Works, and the requirements of the Flora and Fauna Report Stage 1 dated 28 March 2025.

5. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(1A) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement. Based on the Statement, the documents referred to therein, the documents that accompany the Class 1 Application and the documents referred to in [12] below, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act.

6. 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). This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I form this state of satisfaction for the following reasons:

7. The modification is of minimal environmental impact, in compliance with s 4.55(1A)(a) of the EPA Act, given that it relates only to the location of the fence and to correcting the conditions so that they clearly reflect the necessary works and requirements for each stage.

8. The development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, in satisfaction of s 4.55(1A)(b) of the EPA Act, on the basis that the development consent remains for the staged carrying out of works for the purpose of a cemetery, and the changes are confined to the fence and its location and do not radically alter the site works to be carried out.

9. The modification application was notified by the Council between 19 September 2024 and 3 October 2024, and I have considered the issues raised in the submissions received in response to the notification, consistent with s 4.55(1A)(c) and (d) of the EPA Act.

10. Whilst s 7.17 of the Biodiversity Conservation Act 2016 (BC Act) applies, the parties agree, and I accept, that the modification application does not trigger the need for the submission of a biodiversity development assessment report because the modification will not increase the impact on biodiversity values, consistent with s 7.17(2)(c)(i).

The DA appeal (proceedings 2024/437903)

7. The agreement in the DA appeal was filed on 15 April 2025, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the EPA Regulation 2021. The amendments include an amended design for the flora and fauna protection fence, including an amended location of the fence line, as well as a revised Flora and Fauna Assessment Report and a Revised Construction Management Plan.

8. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the grant of development consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents referred to in [14] below, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

9. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

10. The site is zoned RU2 Rural Landscape under the Wollondilly Local Environmental Plan 2011 (WLEP), and development for the purpose of environmental protection works are permissible with development consent in the RU2 zone.

11. The site is located in the Metropolitan Rural Area pursuant to cl 7.9 of the WLEP. Given the minor extent of the works and the placement and design of the fence to protect flora and fauna, I have considered the matters in cl 7.9(3) of the WLEP.

12. On the basis of the Flora and Fauna Report Stage 1 dated 28 March 2025, the design and location of the fence will not significantly affect threatened species or ecological communities, or their habitats, such that the requirement for a biodiversity development assessment report is not required by s 7.4 of the BC Act.

13. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), which concerns koala habitat protection, applies to the site. As there is no vegetation clearing proposed in the development, there is no potential impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.9(3) of Part 4.2 of the SEPP BC.

14. The site falls within the Hawkesbury-Nepean Catchment, such that Part 6.2 of the SEPP BC applies to the development application. Based on the limited extent of the works on the site, the letter of Ethos Urban dated 13 March 2025 and the Flora and Fauna Report Stage 1 dated 28 March 2025, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

15. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Given the limited disturbance of the site for the construction of the fence, the site is suitable for the proposed development.

16. The development application was notified by the Council from 19 September 2024 to 3 October 2024, and again from 15 October 2024 to 31 October 2024. I have considered the issues raised in the submissions received in response to the notification.

Final orders

10. Having reached the state of satisfaction that the decision on each appeal is one that the Court could make in the exercise of its functions, 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)).

11. In making the orders to give effect to the agreement between the parties on each appeal, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act, or the merits of the development application against the discretionary matters that arise pursuant to s 4.15 of the EPA Act.

In proceedings 2024/437868:

12. The Court notes that:

13. The Wollondilly Shire Council as the relevant consent authority, has approved under s 113 of the EPA Regulation 2021 the Applicant amending Modification Application D2019/1488/D in accordance with the following documents (the ‘Amended Application’):

| Item | Date | | Addendum Modification Application, prepared by Ethos Urban | 13 Mar 2025 | | Plan of site work sequencing (Ref: 16116E4), prepared by JMD, Rev C, sheets 1-2 | 10 Jun 2020 |

2. The Applicant is not required to lodge the Amended Application on the NSW Planning Portal pursuant to s 113(6) of the EPA Regulation 2021.

3. The Amended Application will be filed with the Court by the Applicant within seven days.

4. The Court orders that:

5. The appeal is upheld.

6. Modification Application DA/2018/780/2 (as amended) for the modification of the Concept Consent approved staging of the development and consequent amended conditions of consent to reflect the scope of works for each stage at 430-490 Douglas Park Drive, Douglas Park NSW is determined by way of approval.

7. Development Consent DA/2018/780 is modified in the terms in Annexure A.

8. Development Consent DA/2018/780 as modified by the Court is Annexure B.

In proceedings 2024/437903:

14. The Court notes that:

15. The Wollondilly Shire Council as the relevant consent authority, has approved under s 38(1) of the EPA Regulation 2021 the Applicant amending Development Application DA2024/701 in accordance with the following documents (the Amended DA):

| Item | Date | | Amended Statement of Environmental Effects, prepared by Ethos Urban | 13 Mar 2025 | | Stage 1 Flora and Fauna Fence Drawings, prepared by Lanigan Civil: • LC2996-FEN01, Fence Site Plan – Sheet 1 of 2, Rev C, 13 March 2025 • LC2996-FEN02, Fence Details & Specifications – Sheet 2 of 2, Rev B, 27 February 2025 | | | Flora and Fauna Report Stage 1 – Internal Fenceline (Ref HTB03.7EAR), prepared by Travers Bushfire and Ecology | 28 Mar 2025 | | Construction Management Plan (HTPL005), Rev 6, prepared by HT Build | 4 April 2025 |

2. The Applicant is not required to lodge the Amended DA on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation 2021.

3. The Amended DA will be filed with the Court by the Applicant within seven days.

4. The Court orders that:

5. The appeal is upheld.

6. Development Application DA2024/701 for Stage 1 of Concept Development Consent DA/2018/780 being the construction of a 1.8m high wire strand internal flora and fauna protection fence approximately 1,500m in length and associated 4m wide and 2m high double vehicle gate at 430-490 Douglas Park Drive, Douglas Park NSW is determined by the grant of consent subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

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437903.24 Annexure A

437868.24 Annexure A

437868.24 Annexure B