CJHA Pty Ltd v Mid-Coast Council

Public submissions

1. The development application was notified by the Respondent on two occasions. The notification in respect of the original application occurred in September-October 2019 (Exhibit 1, tab 9).
2. The application the subject of the Notice of Motion at [3] was notified between 15-29 July 2021, in response to which 136 submissions were received.
3. In addition to those public submissions contained in Exhibit 1 between Tabs 10-13, the Court heard from four objectors via MS Teams at the commencement of the hearing.
4. A concern common to all of the oral submissions is the likelihood of the proposed development accommodating short term, and not permanent residents. The likely result of this is a further erosion of the community and character of Hawks Nest.
5. Dr Hunter identified three primary concerns, being:

• The height is excessive, and is likely to serve as an undesirable precedent to future development in the area.
• A large number of mature trees proposed to be removed. At the very least, 4 koala feed trees should be provided by the Applicant for every tree removed.
• The basement carpark requires excavation that is complex and close to groundwater. At the very least, conditions of consent requiring ongoing monitoring of environmental indicators should be imposed.

1. Mr Andrews, a resident of Yamba Street who also spoke on behalf of a number of residents (Ex 1, folios 787-973) identified the following concerns:

• The proposed development presents as a single 'monolithic' development.
• Excessive height, including presenting as a four storey development.
• Adverse privacy impacts resulting from overlooking of the neighbouring properties by the top floor.
• Development model varies from that originally proposed by the developer to residents of Hawks Nest and is unlikely to attract young people to activities in the area, including the surf club, school and the like.
• Lack of car parking and likely resident mix will result in vehicles, jet skis and other marine craft parked on the street that will change the natural, treed environment of Hawks Nest.

1. Ms Poldmaa, also a resident of Yamba Street, purchased the property 12 years ago after being attracted by the natural beauty of the bushland setting and has the following concerns:

• In discussions with residents of the area, the owner of the site had undertaken a different form of development.
• Insufficient car parking on site will result in on-street parking of vehicles and boat trailers.
• Images prepared by Ms Poldmaa illustrate her concerns as to the impact of height and bulk on outlook from her property, which will also have the effect of blocking southerly breezes.
• Shadow diagrams prepared by the Applicant cast doubt on whether proposed street trees to Booner Street will receive sufficient sunlight to survive, and so fail to provide softening to the development.
• Koalas have been documented in the immediate vicinity of the site.

1. Mr Cosier, who is an owner of a property on Yamba Street, has the following concerns:

• Seniors townhouse development would be more appropriate for the area that the apartment development proposed.
• The application misrepresents the degree of amendment said to be a part of the amended application.
• The true height of the proposed development is misrepresented by a lack of survey levels around the property.
• Car park layout is inadequate, and vehicles using the ramp when exiting the car park may conflict with bicycles on the street.
• The setback distance from the development to the land zoned E2 is inadequate, and the degree of light spill likely to result is inconsistent with the Environmental Conservation zoning.

1. The Applicant submits that the Court should give less weight to submissions from Mr Andrews and Ms Poldmaa as they share a common address, and that letters behind Tab 13 granting permission for Mr Andrews to speak on behalf of others are in template form.

The site and its context

1. The site comprises 5 allotments that collectively form a wedge-shaped block at the intersection of Booner Street and Yamba Street, Hawks Nest, and is known as 4-12 Yamba Street, Hawks Nest.
2. The western portion of the site is occupied by structures for which consent has been granted for demolition.
3. The eastern portion of the site is heavily vegetated with a mix of native and non-native species.
4. The site is located, in part, within the R3 Medium Density Residential zone, and also, in part, within the E2 Environmental Conservation zone in accordance with the Great Lakes Local Environmental Plan 2014 (GLLEP).
5. Residential accommodation in the form of residential flat building development is a form of development permitted with consent in the R3 zone, where it is consistent with the following objectives of the zone: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To achieve increased population density in locations that support the business centre.
6. The land within the E2 zone is proposed to be dedicated to Council for the purposes of a public reserve. • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

Planning framework

1. The Lot Size Map at cl 4.1 of the GLLEP identifies the minimum area for a lot within the R3 zone is 1,000m2, and the minimum area for a lot within the E2 zone is 400,000m2. Clearly, the portion of the site within the E2 zone does not meet the applicable minimum lot size standard.
2. However, cl 4.1D of the GGLEP provides, at subcl (3), for an exemption where lots to be subdivided are split between zones, on the proviso that subdivision creates a lot containing land in a residential zone that achieves the minimum size shown on the Lot Size Map, all of the land in E2 zone, and where all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map.
3. The applicable height of buildings standard for the site, pursuant to cl 4.3 of the GLLEP is 12m unless the consent authority, or the Court on appeal, is satisfied, at subcl (2A) that firstly, internal lift access will be provided to all levels in the building, and that secondly, the design of the building is consistent with AS 4299-1995, Adaptable housing (AS4299). Where the two requirements are achieved, an additional height bonus of 10% is permitted, resulting in a permitted height on the site of 13.2m.
4. The Applicant submits that, absent a definition of the term 'levels' in the GLLEP, the Court should accept that lift access to all dwellings is a reasonable interpretation of the first requirement, and that the consistency with the requirements of an AS4299 sought by the second requirement is different to full compliance.
5. Furthermore, the only level to which lift access is not provided contains small 'lofts' of limited footprint, accessible by stair to the lower level of the dwelling.
6. While I accept the design of the proposed development is largely consistent with the provisions of AS4299, I do not accept the Applicant's primary submission in respect of lift access for two reasons: 1. Firstly, the relevant lift access is provided by two common, external lifts that connect to elevated walkways that are exposed to the elements. The lift access is not internal. 2. Secondly, I understand the term 'level' to be broader in its meaning than the term 'storey', and so I understand the requirement at cl 4.3(2A) is for lift to service each level, including levels that contain a bedroom, ensuite, wardrobe storage, laundry and external roof top terrace, as shown on the architectural drawings, whether or not they may be characterised as 'lofts'.
7. In the alternative, the Applicant relies upon a written request pursuant to cl 4.6 of the GLLEP (Exhibit L) that seeks to justify the contravention of the height standard of 12m applicable to the site by operation of cl 4.3(2) of the GLLEP.

The contravention of the height standard is justified

1. The objectives of the height standard are in the following terms: (1) The objectives of this clause are as follows - (a) to ensure that the scale of proposed buildings is compatible with the existing environmental character and the desired future urban character of the locality, (b) to encourage residential development that is consistent with AS 4299-1995, Adaptable housing.
2. For the reasons set out in the written request, I am satisfied the height standard is unreasonable and unnecessary in the circumstances of the case because the objectives of the standard are achieved notwithstanding non-compliance with the standard. The grounds may be summarised as follows:

• Firstly, a residential flat building is consistent with Council's desired future character of the locality in the R3 zone, and with the desired future urban character of the Hawks Nest Village Centre Concept Plan identified in the Great Lakes Development Control Plan 2014 (GLDCP).
• Secondly, while the existing character is predominantly single storey dwellings, R3 Medium Density Residential zoning substantially surrounds the site to the north, south and west.
• Thirdly, the proposed development incorporates appropriate building setbacks; a floor space ratio (FSR) that complies with the relevant standard, and is softened through proposed onsite and on-street tree plantings.
• Finally, on the basis of the compliance assessment table on pp 5-6 of the written request, I am also satisfied that the design of the proposal is consistent with the provisions of AS4299, with provision to be reasonably modified in the future to achieve compliance.

1. Next, while the written request advances a number of reasons it asserts are environmental planning grounds that may be more reasonably characterised as promoting the benefit of the development as a whole, I accept the following grounds are sufficient environmental planning grounds for the purposes of cl 4.6(3)(b) of the GLLEP: 1. The exceedance is minor, representing a footprint that is equal to 8% of site cover, within the context of a development that varies in height from two storeys at the intersection of Booner and Yamba Streets to a maximum of four storeys, with the setback increasing as height increases. 2. The exceedance of the 12m height limit in these small sections is complemented by the reduced two storey building sections at the corner of Booner and Yamba Streets. 3. I accept that the visual impact of the built form at the topmost floor is reduced by virtue of the small footprint of these forms, and the setback from the floor below.
2. Finally, I am satisfied the proposed development is consistent with the objectives for development in the R3 zone for the reasons that follows:

• The proposed development will provide for the housing needs of the community by providing a mix of two- and three-bedroom units within a medium density residential environment, and will facilitate increased population density in close proximity to the B1 zone to the east of the site.
• While the proposed development represents a departure from the surrounding standard residential dwelling development, it is consistent with the Council's desired future character for the area and will provide for a variety of housing types within a medium density residential environment.

1. As I am satisfied that the proposed development is consistent with the objectives of the height standard, and the objectives for development in the R3 zone, I am also satisfied that the proposed development is in the public interest. In forming this opinion of satisfaction, I note the exceedance is limited to the bonus of 10% available to development by operation of cl 4.3(2A) of the GLLEP as illustrated in Figure 3 of the written request, re-produced below:
2. Given the minor numerical exceedance of the height standard, I understand the Secretary's concurrence can be assumed pursuant to cl 4.6(4)(b) of the GLLEP and I find the written request should be upheld.

Other matters in the GLLEP

1. While the site is mapped as containing Class 3 and Class 4 Acid Sulfate Soils for the purpose of cl 7.1 of the GLLEP, I accept the evidence of Report on Supplementary Geotechnical Investigation prepared by Cardno dated 19 August 2021 (Geotechnical Investigation) (Exhibit H) that detailed analysis of the mapping indicates the site is situated on a boundary between high and low probability of occurrence of acid sulfate soils. Further, that a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works pursuant to cl 7.1(4)(a) of the GLLEP.
2. On the basis of the Geotechnical Investigation at Exhibit H, Drainage Plans prepared by Tattersall Lander (Exhibit B, Tab 7), and statements contained in both the detailed assessment of the likelihood of dewatering adversely impacting the E2 land (De-watering Assessment) (Exhibit G), and broad statements made by Mr Lander in Exhibit M, I consider those matters at cl 7.2(3)(a)-(h) of the GLLEP to be satisfactorily addressed.
3. After review of the architectural plans (Ex B, Tab 2), and Ex C, and the Landscape Plans (Exhibit D), and the Drainage Plans prepared by Tattersall Lander (Exhibit B, Tab 7), I am satisfied that the matters at cl 7.5(2)(a)-(f) of the GLLEP are addressed in respect of stormwater management. In particular, I note the extent of landscaped area, and of deep soil zone depicted on the site on Landscape Plan Drawing LP03, and the provision for rainwater tanks and raingardens contained in the Stormwater Management Report (Exhibit B, Tab 7).
4. A portion of the site is identified on the Protection of Wildlife Corridors Map at cl 7.9(2) of the GLLEP as "Protection Corridor'. A Flora and Fauna Assessment (Exhibit J), and a Vegetation Management Plan (VMP) (Exhibit K) has been prepared by Wildthing dated August 2018 to manage the ecological value of that portion of the land zoned E2, that is to be dedicated to Council as a public reserve. I note here that Condition 30 of the proposed conditions of consent requires the preparation and implementation of the VMP so as to "enhance the condition and function of the E2-zoned land". On the basis of the foregoing, I am satisfied that the wildlife corridor will be maintained or regenerated to ensure continued protection, and that the development will not negatively impact on the wildlife corridor, either directly or indirectly
5. In reaching this state of satisfaction, I particularly note the relevant findings of the Flora and Fauna Assessment in respect of Koalas, identified by Ms Poldmaa as present in the local area, are as follows:

• "no listed Koala feed tree species are present within the site however the Blackbutts on site provide a supplementary habitat resource for Koalas." (p 27)
• "Although the site is located in the centre of the Hawks Nest built-up area it represents part of a Koala movement corridor through the township itself, with the semi-urbanised local Koala population using a network of street and backyard trees to move between adjoining habitat areas to the north and the south." (p 40)
• "the development is to exclude and preserve the majority of this vegetation and endeavour to ameliorate the loss of the lower-quality vegetation on Lots 89 and 90 in landscaping and future management of the retained vegetation. As such the current proposal will be unlikely to impact upon the potential for Koala movement on and around the site." (p 40)

1. As the site is located within the Hawks Nest Village Centre, and the proposed conditions of consent provide for the provision of water (Conditions 13, 14), electricity (Condition 6), sewerage (Condition 13), stormwater (conditions 7, 20, 21) and vehicular access (Condition 18), I am satisfied that adequate arrangements have been made for services identified as essential under cl 7.21 of the GLLEP to be available.

State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP)

1. Clause 13 of the Coastal Management SEPP requires the consent authority, or the Court on appeal, to consider the impact on certain aspects of the coastal environment in the following terms: (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact. …
2. I am satisfied that the proposed development, being within the R3 zone, has been designed and sited to avoid adverse impact on land within the E2 zone. Furthermore, after considering the Flora and Fauna Assessment, VMP, Stormwater Management Report, De-Watering Assessment, and the Geotechnical Investigation at Exhibit H, I consider the likely impacts of the development on those matters set out at cl 13(1) of the Coastal Management SEPP to be satisfactorily addressed.
3. The site is identified in Exhibit M as being located within the Coastal Use area. Development within the coastal use area is constrained by the provisions of cl 14 of the Coastal Management SEPP in the following terms: (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority - (a) has considered whether the proposed development is likely to cause an adverse impact on the following - (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that - (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised - the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.
4. On the basis of the evidence before the Court, I am satisfied that the proposed development will not adversely impact on those aspects of the coastal use area set out in cl 14(1) of the Coastal Management SEPP. In forming this opinion of satisfaction, I note Mr Newbold's view in Exhibit 3 that the amended plans resolve matters of town planning and urban design, and I have taken into account the bulk, scale and size of the proposed development in my finding that the proposal is consistent with the desired future character of the Hawks Nest Village Centre at [30], and with the objectives for development in the R3 zone, as stated at [32].
5. Clause 15 requires that development consent must not be granted to development on land within the coastal zone unless the consent authority, or the Court on appeal, is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. On the basis of the particular consideration given to the characteristics of groundwater identified in the Geotechnical Investigation by the De-Watering Assessment, assessment of De-watering at Section 6.2 of the Geotechnical Investigation, and the VMP, I am so satisfied.
6. Clause 16 requires the Court to consider the relevant provisions of any certified coastal management program that applies to the land. In this case, the parties agree that no coastal management program applies to the land.

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65)

1. Clause 28 of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following: (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
2. The Respondent has, for whatever reason, not constituted a design review panel whose advice the Court can be assisted by.
3. However, where an application relates to residential apartment development, cl 50(1A) of the EPA Regulation requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.
4. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement, marked Exhibit B, Tabs 4-5, provided by James Forbes (Reg No.10909) is in a complying form and adequately demonstrates that the development is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide.

State Environmental Planning Policy No 55 - Remediation of land

1. Clause 7 of the State Environmental Planning Policy No 55 - Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the environmental testing contained in the Geotechnical Investigation I am satisfied that the site is not contaminated.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

1. I am satisfied that the application is accompanied by a BASIX Certificate (Cert No. 979770M_02), prepared by Building Sustainability Assessments dated 14 September 2021 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Two conditions are disputed

1. As stated at [5], the parties dispute two conditions of consent proposed by the Respondent.

Activity Approval in respect of potential de-watering

1. The first condition in dispute proposes that operation of the consent be deferred until the Applicant is able to demonstrate an activity approval from the relevant approval body in accordance with s 91(3) of the Water Management Act 2000 (Water Management Act).
2. The Respondent submits that as the Applicant had not identified in the Development Application (Exhibit 1, Tab 1) that it was integrated development, referral to the relevant approval body was not made in accordance with s 4.47 of the EPA Act.
3. Relatedly, the relevant approval body has an obligation under cl 8A, Schedule 1 of the EPA Act to ensure public exhibition of an application for development consent for nominated integrated development for a period of at least 28 days.
4. In the event such a referral had been made in accordance with s 4.47 of the EPA Act, and the relevant approval body had refused to provide General Terms of Approval (GTA), the Respondent would also have been required by subs (4) to refuse the grant of consent.
5. Absent referral to the relevant approval body, the Respondent identified that insufficient information had been provided in relation to any geotechnical implications relating to groundwater control or de-watering that may be required for a basement carpark, that additional information was required as to whether impacts on groundwater will have any effect on the vegetation in the adjoining E2 zone, and that approval from Natural Resource Access Regulator (NRAR) would be required in relation to any activity to groundwater or de-watering.
6. The Respondent also acknowledges that the relevant approval body is unlikely to refuse to issue GTA, and that even if this is the case, the Court has the power under s 39 of the Land and Environment Court Act 1979 ( LEC Act) to determine the appeal whether or not the consent authority has obtained GTA.
7. The Applicant submits that whether a development application is identified to be integrated development is a matter of election, is not a jurisdictional precondition but is instead intended to be beneficial and facultative, as summarised by Lloyd J in Maule v Liporoni & Anor (2002) 122 LGERA 216; [2002] NSWLEC 140 at [84]: "If a development application is made for integrated development, the effect of any subsequent development consent is that an approval body, following notification of the development application, and which then fails to inform the consent authority whether or not it will grant the approval or to inform it of the general terms of its approval, cannot subsequently refuse to grant approval to an application for approval in respect of that development and any such approval must not be inconsistent with the development consent (s91A(5)). The provisions relating to integrated development are there for the benefit of applicants for development consent and not to hinder them."
8. In the circumstances of this case, the relevant approval sought by the Respondent as a deferred commencement condition is a matter dealt with, in any event, by Condition 10 which is proposed by the Respondent in the following terms: "The development shall be carried out in accordance with the terms of the Activity Approval issued by the Natural Resource Access Regulator pursuant to Section 91 of the Water Management Act 2000."
9. Condition 10 is an appropriate condition of consent because, to the extent the proposed development requires approval under the Water Management Act, then that approval must be obtained before the relevant activity is carried out.
10. For that reason, the Court can be satisfied that no development will occur on the site until the relevant approval has been obtained, and there is no reason why the consent should not operate until that approval is obtained.
11. Section 91 of the Water Management Act is in the following terms: 91 Activity approvals (1) There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals. (2) A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land. (3) An aquifer interference approval confers a right on its holder to carry out one or more specified aquifer interference activities at a specified location, or in a specified area, in the course of carrying out specified activities. Note - Examples of where an aquifer interference approval may be needed include mining operations, road construction and any other large scale activity that involves excavation
12. The purpose of the proposed deferred commencement condition is to ensure that an activity approval in respect of an aquifer interference approval is secured from the NRAR prior to the operation of any consent.
13. While it may be reasonably assumed that an Applicant would elect to seek the benefit of a streamlined development assessment such as that offered by nominating a development application as integrated development where applicable, I accept that it is not mandatory for an Applicant to do so. Likewise, it not unlawful for the Applicant to elect not to do so.
14. In the circumstances of this case, the Respondent identified insufficient information was provided by the Applicant in respect of potential de-watering of the land in the R3 zone as a result of basement excavation, and of the land adjoining in the E2 zone.
15. Subsequent to this, the Applicant has caused the De-Watering Assessment and Geotechnical Investigation to be prepared that assist in forming an opinion of satisfaction in respect of cl 13 of the Coastal Management SEPP at [42] and cl 7.2 of the GLLEP at [36].
16. I also accept the assessment in Section 6.2 of the Geotechnical Investigation that groundwater yield volumes are highly dependent on a range of variables, including: "> Excavation face support type; > Construction staging; > Initial groundwater level; and > Variation in ground conditions, such as the loose to indurated sands encountered at the site." And also, relevantly that: "The extent of the dewatering would vary depending on the shoring/excavation strategy selected… .. Continuous dewatering could potentially result in depressing the immediate groundwater table. This should be considered in the shoring wall design and construction methodology, as it can result in ground settlement and potential damage to neighbouring structures. …"
17. The De-Watering assessment, citing the Geotechnical Investigation, also relevantly states that: "… The Cardno report also mentions that during early 2018 the groundwater level was significantly lower. Photographs of the adjacent E2-zoned vegetation included in the 2018 Wildthing Flora and Fauna report show no significant variation to the current state of this area. Therefore it is evident that the remnant native vegetation within the adjacent E2-zoned land has shown no significant enduring signs of stress or variation in structure or floristics in the period since early 2018, despite strong variations in both rainfall and groundwater levels. …"
18. The De-Watering Assessment recommends that: "Monitoring of the adjacent E2-zoned vegetation during construction would be advisable to identify any localised impacts within this community from die-off and weed incursion as a result of the temporary dewatering."
19. The assessments contained in the Geotechnical Investigation and De-Watering Assessment and in the terms of the deferred commencement condition proposed by the Respondent, being in respect of "de-watering activities related to construction", satisfy me that the condition proposed by the Respondent at Condition 10 adequately deals with the requirement for Activity approval under the Water Management Act.
20. Given the detailed assessment in the evidence at [72], I accept the Applicant's submission that the relevant approval must be obtained before the relevant activity is carried out, and should not prevent the consent from being operative until the approval is obtained.
21. Additionally, I note Condition 26 requires a de-watering management plan to be prepared in accordance with the Geotechnical Investigation prior to the release of the Construction Certificate.
22. On the basis of the above, I find that it is appropriate for the Court to exercise the power available to it under s 39(6)(a) of the LEC Act to the effect that the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted.

A path in the land zoned E2 Environmental Conservation

1. At the close of the first day of the hearing, the experts in ecology and engineering were directed to confer and prepare a joint expert report in respect of the condition of consent proposed by the Respondent, at Condition 15, proposing an access path in the land zoned E2.
2. While a joint report was not filed as directed, the parties advised the Court that the agreement of the experts was recorded in the form of an amended Condition 15 in the Respondent's proposed draft without prejudice conditions of consent (Exhibit 7).
3. Condition 15 is in the form of a table, comprising nine aspects or elements.
4. The particular element of the condition on which the experts agreed is worded as follows: Work Standard to be provided The walking track shall be designed to minimise intrusion in the structural root zone of native trees in the E2-zoned area. The final alignment shall be agreed to by Council's Tree Management Officer or Senior Ecologist and constructed to Council's requirements. Walking track through the proposed E2 lot, linking the footpaths in Yamba Street and Booner Streets. The track must have a 2m clear width and be constructed of a 100mm thick compacted gravel or no-fines concrete surface, which allows some oxygen and water exchange with the natural soil. The track shall not be within 0.75-metres of the trunk of trees with a trunk diameter of up to 400mm (at breast height over bark) and not be within 2.0-metres of the trunk of trees with a trunk diameter of greater than 400mm. The track shall be constructed under the supervision of a Level 5 AQF Arborist to adopt measures to preserve trees from harm. No lighting shall be provided along this track.

1. Notwithstanding the agreement of the experts, the Applicant submits that the proposed pathway does not fairly or reasonably relate to the development the subject of the application, and is additional to extensive footpath reconstruction proposed as part of the works in the R3 zone land, and to the dedication of the land in the E2 zone.
2. Further, the value of the dedication of the land in the E2 zone has not been taken into account in the assessment of the appropriate level of development contributions in the proposed Condition 29 in which a sum of $80,871.48 is identified for open space.
3. The Respondent considers the proposed path consistent with the requirements for Environmental Conservation Land in Section 16.28.2 of the GLDCP which is in the following relevant terms: "Environmental Conservation Land Objectives To protect and enhance the land zoned E2 Environmental Conservation. To ensure the land zoned E2 Environmental Conservation is effectively managed into the future To consolidate the land zoned E2 Environmental Conservation. Controls … 2. A mechanism satisfactory to Council is to be established for the long term effective management of the land zoned E2 Environmental Conservation. 3. Councils preferred mechanism for the ongoing management of the land zoned E2 Environmental Conservation is through either Land Dedication or Community Title subdivision. ... 5. Any management regime proposed as part of a development application that affects land zoned E2 Environmental Conservation is to address the following issues: … the provision of community access facilities (walking paths, seating, etc.); mechanisms by which residents may manage, use and enjoy environmentally sensitive lands without detrimentally affecting biodiversity; landscape and amenity management. …"
4. In summary, the land in the E2 zone is to be dedicated to Council, consistent with Control 3, and the proposed path is consistent with Control 5.
5. Further, the path is also consistent with the preferred pedestrian connections identified in the Hawks Nest Village Centre Concept Plan, re-produced below:
6. While not assisted by the submission on the matter, I understand the dedication of the land in the E2 zone is for the purposes of Environmental Conservation, being distinct from open space as defined in the Contributions Plan. It is not a park, sporting field or the like for which contributions are calculated in Condition 29.
7. The development the subject of the development application comprises, in part, the consolidation of Lots 88, 89, 90 and A and B, and the re-subdivision into 2 Lots, being the proposed Lots 1 and 2.
8. The proposed Lot 2 is within the Hawks Nest Village Centre, through which the Concept Plan identifies a pedestrian connection is preferred, for the purposes of the provision of community access facilities and so that residents may manage, use and enjoy environmentally sensitive lands without detrimentally affecting biodiversity.
9. I find the path proposed in the form agreed by the experts to have a direct nexus with the proposed development, and to be entirely consistent with the provisions of the GLDCP.

Public submissions

1. Public submissions express concern at what is described as the 'monolithic' nature of the built form, and the undesirable precedent the proposed development is capable of setting in the Hawks Nest Village Centre.
2. On careful review of the architectural plans, the landscape plans, and the planting plan at Exhibit E, I consider the built to be modulated in plan and elevation when viewed from both Booner Street and Yamba Street. In particular I note the setback to the street frontage varies, and is shown to be well landscaped by a mix of canopy trees, and mid- and low- level planting.
3. The landscape plans identify an area of 1449.6m2 within the proposed Lot 1 that has an area of 3,354m2, representing an area of landscaping that exceeds the requirement of 40% of the site.
4. The proposed development is also within the permitted FSR control, and for the reasons set out at [29]-[34], the height of the building is acceptable.
5. The proposed development is on land zoned for R3 Medium Density Residential development, as is the area to the north, west and south of the site. Clearly, the Hawks Nest Village Centre, and its immediate environs, is envisaged to undergo transition to medium density residential development.
6. For the reasons set out in the judgment above, I determine that the development application is deserving of the grant of consent pursuant to s 4.16 of the EPA Act, with conditions in the form proposed by the Respondent, but for the removal of the deferred commencement condition.

Orders

1. The Court notes that: 1. Mid-Coast Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant further amending the development application No 283/2019 on the basis of the following amended plans and documents:

• Architectural plans marked Exhibit C
• Landscape plans marked Exhibit D
• Landscape planting plan marked Exhibit E 1. The parties are to effect lodgement of the amendment on the NSW planning portal within 7 days of the date of this order and notify the Court after it has been lodged.

1. The Court orders that: 1. The Applicant's written request to contravene the height of building standard at cl 4.3 of the Great Lakes Local Environmental Plan 2014, pursuant to cl 4.6 of the Great Lakes Local Environmental Plan 2014, is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application No 283/2019 for consolidation of lots, residential flat building and 2 lot Torrens title subdivision and strata subdivision at 12 Yamba Street, Hawks Nest, subject to conditions at Annexure A. 4. All exhibits are returned, except for Exhibits A, B, C, D, E, 6 and 7.

Commissioner of the Court Annexure A (277823, pdf) Plans (15242515, pdf)

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: 29 September 2021