COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council's deemed refusal of Development Application 1176/2014 for the construction and operation of a helipad in Bardens Bay, Lake Macquarie.
The background facts are set out in the Council's Amended Statement of Facts and Contentions (ASOFAC) filed with the Court on 24 September 2019.
The marina to which the helipad is to be attached connects to land which is subject to Concept Approval MP_ 06_0309 and a number of associated development consents for the Trinity Point Tourism Entertainment and Residential Accommodation Project. The Concept Approval was amended by the Court in LEC Matter No 2018/00207343.
Section 75P(2)(a) of the EPA Act requires that the determination of this development application must be generally consistent with the terms of the Consent Approval. Similarly, cl 3B(2)(d) of Schedule 2 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provides that a consent authority must not grant consent under Part 4 for development for which a concept plan has been approved unless "it is satisfied that the development is generally consistent with the terms of the approval of the concept plan". The approval of this development application will be generally consistent with the amended terms of the Concept Approval approved by the Court in Johnson Property Group Pty Ltd v Minister for Planning [2019] NSWLEC 1644.
A large number of local residents and community groups have lodged objection to the development. A large number of their submissions indicate a concern both on amenity and safety grounds generated by the proposed use of the helipad despite most amendments to void airspace over their residents and sensitive parts of the Bay. The objectors written and oral submissions and the other matters raised by the Council were discussed at a conciliation conference convened between the parties on 9 December 2019 under s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation.
During that conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the applicant's amended application on a conditional basis.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the decision is one that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In this instance, the parties have explained how the contentions in the appeal and the jurisdictional prerequisites have been satisfied. In that regard, they agree that the contentions raised in the proceedings have been resolved and the Court has power to grant consent to the development the subject of the proceedings in the proper exercise of its functions. In coming to this conclusion, the parties are satisfied that the following jurisdictional prerequisites have been satisfied.
[2]
Environmental Planning and Assessment Act 1979 (EPA Act)
[3]
Section 4.15(1) Matters for consideration
All matters relevant to the proposed development have been considered and are set out in the following documents:
Environmental Impact Statement prepared by ADW Johnson dated April 2018
Further Planning Report prepared by ADW Johnson dated May 2019
Joint Report of Planning and Social Impact experts in these proceedings filed 11 November 2019
Revised Plans dated 22 November 2019
Helipad Operations Management Plan dated December 2019.
[4]
Clause 49 Persons who can make development applications
The development application has been made with the consent of the landowner, being Crown Lands.
[5]
Clause 50 How must a development application be made?
The parties agree that the development application complies with cl 50 and Schedule 1 to the EPA Regulation.
[6]
Clause 3B(2) of Schedule 2 of the EPA Savings Regulation relevantly provides:
[7]
(1) This clause applies to development (other than an approved project) for which a concept plan has been approved under Part 3A, before or after the repeal of Part 3A, and so applies whether or not the project or any stage of the project is or was a transitional Part 3A project.
[8]
(2) After the repeal of Part 3A, the following provisions apply to any such development (whether or not a determination was made under section 75P(1)(b) when the concept plan was approved) -
[9]
(a) if Part 4 applies to the carrying out of the development, the development is taken to be development that may be carried out with development consent under Part 4 (despite anything to the contrary in an environmental planning instrument),
[10]
(f) the provisions of any environmental planning instrument or any development control plan do not have effect to the extent to which they are inconsistent with the terms of the approval of the concept plan,
The provisions of environmental planning instruments do not have effect to the extent to which they are inconsistent with the terms of the approval of the concept plan. Notwithstanding that, relevant provisions of both SEPPs and LEPs have been addressed below.
[11]
State Environmental Planning Policy No 33 - Hazardous and Offensive Development (SEPP 33)
[12]
Clause 12 requires a preliminary hazard analysis to accompany applications for potentially hazardous or offensive development.
[13]
Clause 13 provides that certain matters must be considered when determining applications for potentially hazardous or offensive development.
The parties agree that, in accordance with cl 11 of SEPP 33, cll 12 and 13 do not apply because the proposed development does not include a fuel facility or storage of any potentially hazardous or offensive materials.
[14]
State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71)
[15]
Application
SEPP 71 continues to apply to the application, in accordance with cl 21 of State Environmental Planning Policy (Coastal Management) 2018.
[16]
Clause 8 of SEPP 71 sets out matters that "should" be taken into account by a consent authority when preparing a draft local environmental plan or determining a development application.
Clause 8 does not restrict the grant of development consent. Notwithstanding that, the parties agree that the relevant matters for consideration have been addressed in the application, including the Environmental Impact Statement dated April 2018.
[17]
State Environmental Planning Policy (Coastal Management (2018)
[18]
Clause 13 of the Coastal Management SEPP provides that consent must not be granted to development on land within the coastal environment area unless the consent authority has considered certain impacts on the coastal environment.
[19]
Clauses 15 and 16 restrict the grant of consent unless the consent authority is satisfied that:
[20]
(a) the proposed development is not likely to cause increased risk of coastal hazards; and
[21]
(b) the consent authority has taken into consideration the relevant provisions of any certified coastal management program.
The Coastal Management SEPP replaced SEPP 71 from 3 April 2018 and does not apply to the development application lodged prior to that date (see cl 21).
Notwithstanding that, the parties agree that the matters referred to in cl 13 of the SEPP have been addressed in the Environmental Impact Statement dated April 2018 and the circumstances referred to in cll 15 and 16 do not arise.
[22]
State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure)
[23]
Clause 104 - Traffic Generating Development, restricts the determination of a development application for certain traffic generating development without notification and consideration of a response from the RMS.
The proposed development is not "traffic generating development" for the purposes of cl 104. The proposed development falls within the "any other purpose" category under Schedule 3 to SEPP Infrastructure. The proposed development does not meet the criteria under column 2 of Schedule 3 for that category of development (ie. it does not accommodate 200 or more motor vehicles per hour).
[24]
Lake Macquarie Local Environmental Plan 2004 (LEP 2004)
[25]
Application
The provisions of the Local Environmental Plan do not have effect to the extent to which they are inconsistent with the terms of the approval of the Concept Plan. Notwithstanding that, the provisions of the LEP have been addressed below.
[26]
Permissibility and Zoning
In accordance with cl 3B(2) of Schedule 2 of the EPA Savings Regulation, the development is taken to be development that may be carried out with development consent under Part 4. In any event, at the time the application was made the proposed development was permissible with development consent in Zone 11 Lake and Waterways under LEP 2004.
[27]
Clause 16 of LEP 2004 provides that development consent must not be granted unless the consent authority has:
[28]
(a) had regard to the vision, values and aims of the Lifestyle 2020 Strategy as expressed in Part 2, and
[29]
(b) is satisfied that such of the development as is proposed to be carried out within a zone is consistent with the relevant objectives for the zone, as set out in the Table to clause 15.
The Environmental Impact Statement dated April 2018 addresses the principles of the Lifestyle 2020 Strategy (and the updated Lifestyle 2030 Strategy) and confirms that the proposed development is consistent with the Strategy.
The proposed development is consistent with the objectives of Zone 11 Lake and Waterways for the reasons set out in the Environmental Impact Statement dated April 2018 (page 89).
[30]
Clause 17 provides that consent must not be granted unless the consent authority is satisfied that adequate arrangements have been made for the provision of infrastructure.
Essential services will be provided to the proposed helipad facility as required in consultation with relevant service providers. The parties agree that adequate arrangements have been made for the provision of infrastructure.
[31]
Clause 30 provides that consent must not be granted to development unless the consent authority is satisfied that all reasonable and practicable control measures will be implemented to minimise pollution likely to arise from carrying out that development.
The proposed helipad has been designed with regard to important environmental considerations, which will be mitigated and managed throughout the construction and operation of the helipad. Section 7 of the Environmental Impact Statement provides detailed consideration of relevant environmental matters.
In addition, general terms of approval have been issued for an amendment to an existing Environment Protection Licence that will apply to the marina and helipad under the Protection of the Environment Operations Act 1997.
[32]
Clause 32 provides that before granting consent for the erection of a structure on flood prone land, the consent authority must consider the contents of any flood management plan or development control plan applying to the land, and be satisfied that to carry out the development in accordance with the consent would be consistent with flood hazard and levels of risk that are acceptable to the community.
The proposed helipad has been designed with consideration given to flooding. The helipad will be a floating structure attached to the approved marina and there will be no flooding impact. The relevant flood management plans and development control plans have been considered by the parties. Those plans deal with flooding and land-based structures and are generally not applicable to the proposed development. The parties agree that the development will be consistent with flood hazard and levels of risk that are acceptable to the community for this type of development.
[33]
Lake Macquarie Local Environmental Plan 2014 (LEP 2014)
Although the proposed development is now prohibited in Zone W1 Natural Waterways under LEP 2014, cl 1.8A of that LEP requires any application not finally determined before the commencement of that plan to be determined as if the plan had not commenced. Accordingly, the provisions of LEP 2014 do not operate to prohibit the proposed development.
In addition, under cl 3B(2) of Schedule 2 to the EPA Savings Regulation, the development is taken to be development that may be carried out with development consent under Part 4.
Notwithstanding the above and the effect of cl 3B of Schedule 2 to the EPA Savings Regulation, the provisions of LEP 2014 have been addressed in the Environmental Impact Statement dated April 2018.
The proposed development will meet the 'helicopter-related activity' Scheduled Activity threshold criteria, as the proposal will involve more than thirty flight movements per week and the helipad will be located within 1 km of a dwelling not associated with the activity. In addition, general terms of approval have been issued for an amendment to an existing Environment Protection Licence that will apply to the marina and helipad under the Protection of the Environment Operations Act 1997.
[35]
Part 3 of the Coal Mine Subsidence Compensation Act 2017 requires approval for certain development within mine subsidence districts.
Subsidence Advisory NSW confirmed on 14 May 2018 that no approval was required.
[36]
The Water Management Act 2000 contains provisions relating to management of works affecting the banks or bed of a water or body and requires a controlled activity approval (under s 91) for certain development.
The Natural Resources Access Regulator (formerly DPI Water) advised on 22 June 2018 that no approval was required.
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.
The Court orders:
1. Leave is granted to the Applicant to make the following minor amendments to Development Application DA 1176/2014 for the construction and operation of a helipad:
1. Update the plans listed below to Version L of those plans dated 22 November 2019:
1. 37429(4)-DA-001-L: Location & Marina Context of Proposed Helipad
2. 37429(4)-DA-001-L: Plan of Proposed Helipad
3. 37429(4)-DA-001-L: Typical Elevation of Proposed Helipad
1. Include the Helipad Operations Plan dated December 2019, endorsed by Mr Brenton Davis, ATPL-H Aviation Advisor.
1. The Appeal is upheld.
2. Consent is granted to Development Application DA 1176/2014 for the construction and operation of a helipad on Lake Macquarie (Crown Land Reserve 10121129), subject to the conditions in annexure "A".
3. No order as to costs (apart from the order made under section 8.15(3) of the Environmental Planning and Assessment Act 1979 on 24 June 2019).
[37]
Senior Commissioner of the Court
Annexure A (61.7 KB, pdf)
Plans (1.57 MB, pdf)
Helicopter Operations Management Plan (4.91 MB, pdf)
[38]
Amendments
02 January 2020 - Correction of Applicant's Counsel in Representation
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: 02 January 2020