Benson Avenue Pty Ltd v Council of the City of Shellharbour

Concept development applications

1. Section 4.22 of the EPA Act provides as follows: 4.22 Concept development applications (1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications. (2) In the case of a staged development, the application may set out detailed proposals for the first stage of development. (3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application. (4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless - (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection. (5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.
2. As introduced above, in this instance, the development application seeks consent for a concept proposal for the larger site (for which detailed proposals for separate parts of the site are to be the subject of a subsequent development application or applications: s 4.22(1)). But in addition, the development application sets out detailed proposals for the first stage of development in accordance with s 4.22(2). In turn, the proposal seeks the grant of consent for the first stage of development mindful of s 4.22(4)(b).

Pre-requisites to the exercise of the function to grant development consent

1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.
2. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional note, as amended on 27 September 2024.

Owner's consent

1. According to the parties, owner's consent has been provided by the Applicant for the site (Tab 1 of Class 1 Application filed 14 July 2023). Council of the City of Shellharbour owns the adjoining site to the north that is currently used as a public drainage reserve, which is legally described as Lot 2001 in DP 1250959 (the Council land). The CDA proposes drainage works within the Council land as part of the Stage 1 works. The parties advise that the Council has provided its consent to the proposed drainage works within the reserve by virtue of entering into the s 34 agreement. In any event, I agree that under s 39(2) of the LEC Act, the Court has power to grant owner's consent for the lodgement of the development application. In the circumstances, the grant of owner's consent over the Council land is appropriate and in turn I agree that the parties' requested orders to that effect are valid.

Roads Act 1993 and Road Transport Act 2013

1. According to the parties, the development application, as amended, seeks consent for road works at the intersection of Benson Ave and new Road 1 (Drawing C220 of the Amended Civil Stage 1 Plans at Tab 7 of the s 34 Agreement Bundle). The road works require approval under s 138 of the Roads Act 1993 (Roads Act). Accordingly, a condition of consent is imposed requiring separate approval under s 138 of the Roads Act for the road works. While an approval under s 138 of the Roads Act is required, the development is not integrated development pursuant to s 4.46(3) of the EPA Act as the Council is the Roads Authority under s 138 of the Roads Act.
2. The parties also advise that the intersection works include new line markings, signs, a traffic island and the inclusion of new turning lanes and as such are a 'Prescribed Traffic Control Device' and require approval pursuant to s 122 of the Road Transport Act 2013 (RT Act). Transport for NSW (TfNSW) has delegated power to the Council of the City of Shellharbour Local Traffic Committee to approve prescribed traffic control devices. Accordingly, a condition of consent is imposed requiring approval of the proposed intersection works, being prescribed traffic control devices, by the Local Traffic Committee. The condition is imposed as operative condition to be satisfied prior to the issue of a Construction Certificate. The parties advise this approach is in accordance with the finding of Preston CJ in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [109] - [113].

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the land is contaminated, the suitability of the land to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The site is currently used for open space recreation and stormwater drainage purposes. The parties advise that a Stage 1 Preliminary Site Investigation has been prepared by DRM Consulting for the site including the Council land, and that this assessment confirms that the site is suitable for the proposed residential, open space and drainage land uses. I accept the advice of the parties and, in light of the above, am satisfied that the requirements of s 4.6 have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. The Development Application was referred to Endeavour Sydney on 8 September 2021 for comment, pursuant to s 2.48, which also requires the consent authority to take into consideration any response to the notice that is received within 21 days. The parties advise that a response was received from Endeavour Sydney which confirmed that the Endeavour Energy has no objection to the Application, subject to the recommended conditions of consent. These conditions have been incorporated into the agreed conditions of consent.

State Environmental Planning Policy (Housing) 2021 and related matters

1. The parties make clear that this CDA does not include detailed proposals for any form of housing development. However there is no doubt that the concept proposals indicate an intention for future residential apartment development which will be subject to subsequent development applications. The parties agreed that Housing SEPP provisions relating to the concept development be given consideration.
2. In their jurisdictional note, the parties advise that relevant savings and transitional provisions in Sch 7A provide that Ch 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) is applicable. In this respect I note the advice of the parties that: 1. In accordance with s 147(1)(a) of the Housing SEPP and s 50(1AB) of the Environmental Planning and Assessment Regulation 2000 - the Applicant has provided a statement addressing the design quality of the development in accordance with the design quality principles (Tab 15 of the s 34 Agreement Bundle). 2. In accordance with s 147(1)(b) - the Applicant has provided a statement addressing the consistency with the Apartment Design Guide (Tab 15 of the s 34 Agreement Bundle). 3. In accordance with s 147(1)(c) - the parties have, and the Court can be satisfied that, the advice received from the referral to the Design Review Panel on 22 October 2021 and 18 July 2022 has been considered in the determination of the development application.
3. I accept this advice of the parties and find that each of the three requirements of s 147(1) have each been met.

Biodiversity Conservation Act 2016

1. Under s 7.7 of the Biodiversity Conservation Act, if a proposal is likely to significantly affect threatened species, the development application is to be accompanied by a biodiversity development assessment report.
2. The proposed development has been assessed in a Biodiversity Assessment Report (Tab 12 of the s 34 Agreement Bundle) and it carried out tests of significance (5 Part Test) for a range of entities existing or potentially existing on the site. The Assessment determined that the proposal would not have a significant impact on any of the subject threatened entities (the parties refer to Section 6.2 Biodiversity Assessment Report Tab 12 of the s 34 Agreement Bundle).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The proposed development includes the removal of 63 trees from the site, including the removal of 1 tree on the Council land. The parties advise that "these trees have already been approved for removal under DA/0686/2018" (a pre-existing development consent).
2. The parties also advise that the total area of removal is 0.36ha of native vegetation. The parties advise that this will not exceed the native vegetation clearing threshold for the site of 0.5ha, and accordingly the biodiversity offset scheme under the Biodiversity Conservation Act is not triggered.
3. Nonetheless, the parties provide a detailed consideration of the provisions of Ch 2, concerned with vegetation in non-rural areas; as well as Chs 3 and 4, relating to koala habitat protection and related plans of management. Ultimately, the advice of the parties is accepted that there are no requirements for jurisdictional findings with respect to these matters. I do note the advice of the parties that the assessment of the proposal:

• Confirms that the proposed development does not trigger entry into the Biodiversity Offset Scheme;
• Includes assessment of the proposed development against the 5 Part Test of Significance and concluded that the proposal would not have a significant impact on any of the subject threatened entities;
• Confirms that koalas are unlikely to occur at the site, the site does not contain core koala habitat and the impacts to koalas and their habitats are negligible; and
• Recommends the implementation of mitigation measures to minimise potential biodiversity impacts from the proposal which have been adopted in the conditions of consent, including the actions prescribed in the Environmental Management Plan prepared by Lodge Environmental dated 30 June 2020 (Tab 14 of the s 34 Agreement Bundle) which was prepared and previously accepted by the Council in relation to DA0686/2019.

Shellharbour Local Environmental Plan 2013 and Shellharbour Local Environmental Plan 2000

1. The site is identified as a 'Deferred Matter' on the Land Application Map in Shellharbour Local Environmental Plan 2013 (SLEP 2013). Pursuant to cl 1.3(1A) of the SLEP 2013, there is no application of this environmental planning instrument to land identified as 'Deferred Matter'. Accordingly, Shellharbour Local Environmental Plan 2000 (SLEP 2000) continues to apply to the site.
2. The site is zoned 2(e) Mixed Use Residential E zone pursuant to SLEP 2000. There is no dispute that the proposed mixed use and residential uses, as well as ancillary works including civil works for the purposes of roads and drainage, tree removal and landscaping are all permissible in the zone. The proposed development for demolition, subdivision and future uses contemplated by the CDA for which consent are sought are permissible with development consent (see cll 23(4), 77 and 91 of the SLEP 2000).
3. Clause 25 provides that Council may consent to commercial or retail development (or mixed commercial and retail development) on land within Zone 2(e) or 2(f) only if, in the opinion of the Council, it will promote the commercial hierarchy for the Shellharbour City local government area presented in Sch 4 of the SLEP 2000. I have reviewed the provisions of Sch 4 and accept the advice of the as follows (Jurisdictional Statement par 52(b)(ii)): "The proposed development is located on a site towards the outer edges of the location of town centre and proposes building envelopes primarily residential with the provision of corner commercial / retail use fronting Benson Ave only that is representative of the anticipated size noted in the category of development identified in Schedule 4. The form of commercial proposed is low scale, neighbourhood focused and will not detract from the viability and prominence from the commercial core and Shellharbour."
4. The parties are of the opinion that the proposed development will promote the commercial hierarchy for the Shellharbour City local government area contained in Sch 4. I agree with the parties argument's on this point. In turn the requirements of cl 25 are met.
5. I note and accept the advice of the parties that there are no building height or floor space ratio controls that apply to the site under the SLEP 2000.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

1. The parties have advised that the development application was advertised and notified to surrounding properties in accordance with requirements and no submissions were received.

Surrender of pre-existing consent

1. The parties advise that agreed conditions of consent include a requirement for the surrender of Development Consent DA0686/2019. Condition 5 is imposed in accordance with s 4.17(1)(b) of the EPA Act and requires the surrender of DA0686/2019. The parties advise that pursuant to s 4.17(5) of the EPA Act the consent is to be surrendered in accordance with the procedures set out in s 97(1) of the EPA Regulation 2000.

Conclusion

1. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, 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, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to "set out in writing the terms of the decision". The final orders have this effect.

Notations

1. With respect to the amendments of the development application, the Court notes that: 1. Council of the City of Shellharbour, as the relevant consent authority, has approved, under clause 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant amending Development Application DA0544/2021 in accordance with the documents listed below: Drawing Issue Plan Title Dated Amended Architectural Plans Concept Application SK-100 D Site Masterplan - Building Envelopes April 2024 SK-101 D Site Masterplan - Overlay of Approved DA - 0 686/2019 April 2024 SK-103 D Site Masterplan - Staging Plan April 2024 01a D Envelope Plan Site - A April 2024 01b A 3D Building Envelope Site - A April 2024 02a D Envelope Plan Site - B April 2024 02b A 3D Building Envelope Site - B April 2024 03a D Envelope Plan Site - C April 2024 03b A 3D Building Envelope Site - C April 2024 04a D Envelope Plan Site - D April 2024 04b A 3D Building Envelope Site - D April 2024 05a D Envelope Plan Site 0 E April 2024 05b A 3D Building Envelope Site - E April 2024 06a D Envelope Plan Site - F April 2024 06b A 3D Building Envelope Site - F April 2024 07a D Envelope Plan Site - G April 2024 07b A 3D Building Envelope Site - G April 2024 08a D Envelope Plan Site - H April 2024 08b A 3D Building Envelope Site - H April 2024 09a C Envelope Plan Site - I April 2024 09b A 3D Building Envelope Site - I April 2024 10a C Envelope Plan Site - J April 2024 10b A 3D Building Envelope Site - J April 2024 Amended Civil Plans Amended Civil Plans - Concept Application C000 7 Cover Sheet and Locality 7 June 2024 C001 7 Notes 7 June 2024 C002 7 Key Plan 7 June 2024 C003 7 Proposed Subdivision of Lot 2000 in DP717478 7 June 2024 C005 9 General Arrangement Plan Sheet 1 of 2 12 July 2024 C006 9 General Arrangement Plan Sheet 2 of 2 12 July 2024 C020 7 Bulk Earthworks Plan 7 June 2024 C021 7 Bulk Earthworks Sections Sheet 1 of 3 7 June 2024 C022 7 Bulk Earthworks Sections Sheet 2 of 3 7 June 2024 C023 7 Bulk Earthworks Sections Sheet 3 of 3 7 June 2024 C035 7 Civil Details Sheet 1 of 3 7 June 2024 C036 7 Civil Details Sheet 2 of 3 7 June 2024 C037 7 Civil Details Sheet 3 of 3 7 June 2024 C050 7 Longitudinal Sections Sheet 1 of 3 7 June 2024 C051 7 Longitudinal Sections Sheet 2 of 3 7 June 2024 C052 7 Longitudinal Sections Sheet 3 of 3 7 June 2024 C110 9 Stormwater Layout Plan Sheet 1 of 2 12 July 2024 C111 9 Stormwater Layout Plan Sheet 2 of 2 12 July 2024 C170 9 Schematic Services Plan 12 July 2024 C180 9 Demolition Plan 12 July 2024 C185 7 Erosion and Sediment Control Notes 12 June 2024 C186 9 Erosion and Sediment Control Plan 12 June 2024 C187 7 Erosion and Sediment Control Details 7 June 2024 C200 7 Retaining Wall Plan 7 June 2024 C201 7 Retaining Wall Long. Sections 7 June 2024 C220 7 Signage and Linemarking Plan 7 June 2024 C221 7 Swept Path Analysis Sheet 1 of 3 7 June 2024 C222 7 Swept Path Analysis Sheet 2 of 3 7 June 2024 C223 7 Swept Path Analysis Sheet 3 of 3 7 June 2024 C230 9 Concept Landscape Design Plan 12 July 2024 Amended Civil Plans - Stage 1 ISC00084-20-C000 6 Benson Avenue - Shellharbour Stage 1 Cover Sheet and Drawing Schedule 7 June 2024 ISC00084-20-C003 6 Benson Avenue - Shellharbour Stage 1 Key Plan 7 June 2024 ISC00084-20-C010 8 Benson Avenue - Shellharbour Stage 1 Civil Works Public Works Layout Plan 12 July 2024 ISC00084-20-C011 8 Benson Avenue - Shellharbour Stage 1 Civil Works Basin Works Layout Plan 12 July 2024 ISC00084-20-C020 6 Benson Avenue - Shellharbour Stage 1 Bulk Earthworks Public Works Layout Plan 7 June 2024 ISC00084-20-C021 1 Benson Avenue - Shellharbour Stage 1 Bulk Earthworks Basin Works Layout Plan 5 March 2024 ISC00084-20-C022 6 Benson Avenue - Shellharbour Stage 1 Bulk Earthworks Sections Plan 7 June 2024 ISC00084-20-C023 6 Benson Avenue - Shellharbour Stage 1 Bulk Earthworks Sections Plan 7 June 2024 ISC00084-20-C024 1 Benson Avenue - Shellharbour Stage 1 Bulk Earthworks Sections Plan 5 March 2024 ISC00084-20-C030 6 Benson Avenue - Shellharbour Stage 1 Typical Road Sections Plan 7 June 2024 ISC00084-20-C035 6 Benson Avenue - Shellharbour Stage 1 Civil Details 7 June 2024 ISC00084-20-C050 6 Benson Avenue - Shellharbour Stage 1 Longitudinal Sections Road 01 7 June 2024 ISC00084-20-C051 1 Benson Avenue - Shellharbour Stage 1 Longitudinal Sections Channel 01 5 March 2024 ISC00084-20-C110 6 Benson Avenue - Shellharbour Stage 1 Stormwater Public Works Layout Plan 7 June 2024 ISC00084-20-C170 6 Benson Avenue - Shellharbour Stage 1 Conceptual Allocations Layout Plan 7 June 2024 ISC00084-20-C180 8 Benson Avenue - Shellharbour Stage 1 Demolition Layout Plan 12 July 2024 ISC00084-20-C185 6 Benson Avenue - Shellharbour Stage 1 Erosion and Sediment Control Notes and Details 7 June 2024 ISC00084-20-C186 7 Benson Avenue - Shellharbour Stage 1 Erosion and Sediment Control Layout plan 12 July 2024 ISC00084-20-C200 6 Benson Avenue - Shellharbour Stage 1 Retaining Wall Layout and Section Plan 7 June 2024 ISC00084-20-C210 6 Benson Avenue - Shellharbour Stage 1 Swept Path Ground Level - Design Vehicles 7 June 2024 ISC00084-20-C211 6 Benson Avenue - Shellharbour Stage 1 Swept Path Entrance - Design Vehicles 7 June 2024 ISC00084-20-C212 6 Benson Avenue - Shellharbour Stage 1 Swept Path Entrance - Check Vehicles 7 June 2024 ISC00084-20-C220 6 Benson Avenue - Shellharbour Stage 1 Signs and Linemarking Layout Plan 7 June 2024 Amended Landscape Plans Concept Application 4659-P100 E Master Plan 1 July 2024 4659-P300 B Planting Palette 28 March 2024 4659-P200 B Landscape Sections 15 April 2024 4659-P201 B Landscape Sections 15 April 2024 4659-P202 B Landscape Sections 15 April 2024 4659-P203 B Landscape Sections 15 April 2024 4659-P204 B Landscape Sections 15 April 2024 4659-P205 C Landscape Sections 7 June 2024 4659-P206 B Landscape Sections 15 April 2024 4659-P207 B Landscape Sections 15 April 2024 4659-P208 B Landscape Sections 15 April 2024 4659-P209 B Detail Areas 1 July 2024 Amended Reports Amended Statement of Environmental Effects prepared by MMJ Consulting, revision B August 2024 Amended Precinct Design Statement prepared by Smith and Tzannes 29 July 2024 Amended Concept Architectural Plans prepared by ADM Architects April 2024 Amended Concept Civil Plans prepared by Maker Engineering July 2024 Amended Stage 1 Civil Plans prepared by Maker Engineering July 2024 Amended Concept Landscape Plans prepared by dsb Landscape Architects July 2024 Amended Stage 1 Preliminary Site Investigation prepared by DRM 19 July 2024 Amended Detailed Flood Study - Concept prepared by Reinco Consulting 1 March 2024 Amended Detailed Flood Study - Stage 1 prepared by Reinco Consulting 1 March 2024 Biodiversity Assessment Report prepared by Cedar Ecology, version 4 September 2024 Amended Traffic Impact Assessment prepared by Amber Consulting 25 July 2024 Amended Environmental Management Plan prepared by Lodge Environmental 30 June 2020 Amended Design Report and Verification Statement prepared by ADM Architects, revision A 2 August 2024

Orders

1. The Court orders that: 1. Owner's consent is granted with respect to the lodgement of the development application in regard to Concept Development Application DA0544/2021, as amended, for drainage works on the adjoining Council owned land at Lot 2001 in Deposited Plan 1250959. 2. The appeal is upheld. 3. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $25,000 within 28 days of judgment being handed down. 4. Concept Development Application DA0544/2021, as amended, for a concept proposal of a masterplan of the site in the form of a 'Precinct Development Strategy' including subdivision layout, road locations, building envelopes for each proposed allotment, civil and drainage works, and tree removal, and detailed Stage 1 works for civil and associated drainage works, tree removal and a Torrens title subdivision of the site at 13 Benson Avenue, Shellharbour City Centre, and drainage works on the adjoining Council owned land at Lot 2001in Deposited Plan 1250959 is determined by a grant of consent subject to conditions contained in Annexure A.

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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: 16 October 2024