Kate Singleton Pty Ltd & S J Connelly CPP Pty Ltd t/as Planners North v Tweed Shire Council

Catchwords: DEVELOPMENT APPLICATION – demolition and use of existing structures – amended plans and materials – conditions of consent in dispute – appeal upheld
BUILDING INFORMATION CERTIFICATE – seeking to regularise structures on the land – no power to amend building information certificates – agreed expert evidence of no utility – appeal dismissed

Legislation Cited: Biodiversity Conservation Act 2016 (NSW)
Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 4.17, 8.7, 8.25
Land and Environment Court Act 1979 (NSW) ss 17, 22
Environmental Planning and Assessment Regulation 2021 (NSW) s 38, cll 23, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Tweed Local Environmental Plan 2014, cll 4.3, 7.7, 7.10, 7.12

Cases Cited: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Scarf v Shoalhaven City Council [2021] NSWLEC 128
Tweed Shire Council v Cooke [2023] NSWLEC 73

Category: Principal judgment

Parties: Kate Singleton Pty Ltd & S J Connelly CPP Pty Ltd trading as Planners North (Applicant)
Tweed Shire Council (Respondent)

Representation: Counsel:
R O’Gorman-Hughes (Applicant)
J Farrell (Respondent)
Solicitors:
Fishburn Watson O’Brien Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2023/192915
2023/193058

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This judgment deals with the following two appeals:

2. Proceedings 2023/192915 (DA Proceedings) – an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the respondent’s refusal of Development Application No DA/22/0601 (Development Application) seeking consent for the continued use of various buildings/structures on land identified as Lot 34 DP 755714 and Lot 3 DP 1264574, known as 2956 Kyogle Road, Kunghur (Subject Land). Consent for use is sought for farm buildings as storage and carport.

3. Proceedings 2023/193058 (BIC Proceedings) – an appeal pursuant to s 8.25 of the EPA Act against the respondent’s refusal of Building Information Certificate (BIC) Application No. BC22/0058 (BIC Application), seeking to regularise various buildings which have been constructed on the Subject Land. The appeal was lodged on 18 June 2023. The BIC is sought for Buildings I-P (downtown), 3 (Kitchen & office), Z (lab building), X (security), and 6a (retaining walls).

4. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

5. In the course of the hearing of the appeal, the Court exercised the functions of the consent authority pursuant to s 38(2) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021) to approve amendments to the Development Application. Further, as part of this judgement, I grant further leave to the Applicant to amend their Development Application to include the Emergency Management Plan dated 20 June 2025.

6. Consistent with the decision of the Court in Scarf v Shoalhaven City Council [2021] NSWLEC 128 (‘Scarf’) the Court does not have jurisdiction to amend or modify the BIC Application.

Background

5. Both proceedings relate to Class 4 proceedings which were commenced by the Respondent. Judgment was handed down by Pain J in the Class 4 Proceedings on 11 July 2023 in Tweed Shire Council v Cooke [2023] NSWLEC 73 (Tweed v Cooke). The Class 4 Proceedings are relevant as the only matter in the two appeals that remains in dispute between the parties is the timing of a demolition condition proposed for the DA Proceedings, that being Condition 22.

6. The Statement of Environmental Effects (SEE) includes the following table which summarises the structures number, name and the use sought under the DA Proceedings as amended. That table is reproduced below.

| Structure Number | Name | Use sought in the DA Proceedings | | Building 1 | Goat shed | Demolition | | Building 2 | Security house | Demolition | | Building 3 | Carport | Carport | | Building 3 | Water tank | Water tank | | Building 3 | Kitchen and Office | Farm workers kitchen | | Building 4 | Toilet Structure | Toilet | | Building 5 | Infant nursery and clone tent | Storage building | | Building 6 | Infant nursery | Storage building | | Building 7 | Pandoras box | Storage building | | Building 8 | Greenhouse and tool containers | Storage building | | Building A | General Managers facilities and open teaching nursery | Storage building | | Toilet B | Toilet | Toilet | | Greenhouse C | Small greenhouse | Storage building | | New Greenhouse | Not included | Storage building | | Toilet E | Toilet | Toilet | | Building G | Worm farm | No use sought, has been demolished | | Building I-P | Downtown | Storage building | | Buildings Q-V | Agricultural greenhouses | Storage building | | | | Solar cells | | | | Storage containers | | Building W | Water tank | Water tank | | Building X | Security check in | Demolition | | Building Y | Compost Toilet | Demolition | | Building Z | Quality Control | Demolition | | Retaining wall near building C, 6 and 7 | Masonry retaining wall 8m long x 1.3m in height | Soil retention and erosion control. |

The DA Proceedings

7. Before addressing the remaining issue in dispute in the proceedings, the imposition of conditions of consent, it is necessary to confirm any jurisdictional preconditions to consent are met or addressed: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16].

Owner’s Consent

8. The Applicant was provided written consent on 23 March 2022 by the registered proprietors of the site, authorising the lodgment of the Development Application in accordance with cl 23 of EPA Regulation 2021.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 prevents a consent authority from granting consent to the carrying out of any development on land unless:

(a) It has considered whether the land is contaminated, and (b) If the land is contaminated, it is satisfied that the land is suitable in its contaminated state for the purpose of which the development is proposed to be carried out, and (c) If the land requires remediation to make it suitable, it is satisfied that the land will be remediated before the land is used for the relevant purpose.

10. The Development Application is accompanied by a site contamination assessment report which concludes that the site is suitable for the uses for which consent is sought.

Section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW)

11. The entire land is mapped as either "Category 1 vegetation" or a "Vegetation Buffer" under Planning for Bushfire Protection 2006. The Court was assisted by evidence from bushfire experts Mr Anthony Hawkins and Ms Helen Robinson. The bushfire experts agree that the reclassification of all buildings on the site to Class 10 as part of the amendments to the Development Application granted by the Court has removed all bushfire protection requirements of Planning for Bushfire Protection and resolved the respondent’s contentions. I accept the agreement of the experts.

12. Under the Biodiversity Conservation Act 2016*,* development likely to cause significant adverse impacts on species or exceed defined thresholds must enter the Biodiversity Offset Scheme. Thresholds include the “Biodiversity Value Map” and “Native Vegetation Clearing”, with minimum lot size set at 1 hectare for this site under Tweed Local Environmental Plan 2014 (LEP 2014). No part of the site is mapped on the “Biodiversity Values Map”, no vegetation removal is proposed, and the land is not listed as critical habitat. The Court was assisted by evidence from ecology experts Mr Karl Robertson and Mr Michael Banks who agree that the Respondent’s previous contentions are resolved. I accept the agreement of the experts.

13. The Development Application was publicly exhibited between 5 October 2022 and 19 October 2022. No submissions were made.

Tweed Local Environmental Plan 2014

14. The subject site is zoned RU2 – Rural Landscape in accordance with the provisions of LEP 2014. The structures, the subject of this application are to be used as farm for the purposes of storage and carport associated with the farming operations on the site. No consent is sought for any “process” type use for any of the buildings on the site. Both “extensive agriculture” and “intensive plant agriculture” are uses permitted without consent and are consistent with the zone objectives as those objectives provides for the maintenance of the rural character of the land and the use is compatible with extensive agriculture use on the land.

15. All structures are well below the 10m height limit specified in Clause 4.3: Height of Buildings in LEP 2014.

16. Clause 7.12 Existing and Future Water Storage Facilities applies. To ensure the protection of existing community water storage facilities, an onsite wastewater assessment and an on-site sewerage management design report were commissioned. These reports confirm the suitability of the site for the use for which development consent is sought. The development for which consent is sought does not have a significant adverse impact on topographical features, landscape or the natural state of the property.

17. Clause 7.7 Drinking Water Catchments applies. The onsite wastewater assessment and the on-site sewerage management design report confirm that the development will not have an adverse impact on the quality and quantity of water entering the drinking water storage and appropriate measures have been implemented to avoid, minimise and mitigate the impacts of the development.

18. Clause 7.10 Essential Services states that development consent can only be granted if essential services—such as water, electricity, sewage, stormwater, and access—are available or adequately planned for. The site has on-site collection facilities for water supply. It has an electricity connection. The disposal and management of sewerage are now agreed as satisfactory subject to the annexed conditions of consent. There is no evidence of stormwater drainage or adverse impacts from stormwater management. Satisfactory vehicular access for agricultural vehicles is available to the land. Research in relation to the flooding and structural adequacy of the bridge that gives access to the property has been completed and that documentation supports this Development Application.

19. Having assessed those matters, I accept the parties agreement that all jurisdictional pre-requisites to the grant of development consent in the DA Proceedings have been met, and that it is lawful and appropriate to grant the consent having regard to the whole of the relevant circumstances. The issue that remains is the resolution of the disputed condition.

The Disputed Condition

20. The Development Application is accompanied by a BCA Audit Report prepared by Mainey Pty Ltd dated 16 June 2025 which identifies necessary upgrade works, approvals and certifications for structures on the site. The Applicant accepts this work is required to be completed. Both parties agree that the imposition of a condition requiring the necessary upgrade works, approvals and certifications for structures on the site should be imposed. That condition is extracted below:

23 NCC/BCA Compliance Report

Before either the issue of an occupation certificate or commencement of the approved use of any building, any necessary upgrade works, approvals and certifications outlined within the BCA Audit Report prepared by Mainey Pty Ltd dated 16 June 2025 for the classification of the building must be completed.

Reasons: To ensure compliance with the NCC/BCA.

21. The disputed condition seeks to ensure that prior to the use of the buildings and structures retained on the site, an occupation certificate (OC) or a BIC is obtained. The difference between the parties in relation to the disputed condition is whether it is appropriate to impose the second part of the condition which would, on the Respondents case, require the demolition of structures.

22. The Respondent seeks for the following condition to be imposed on the development consent under the DA Proceedings:

22. Occupation certificate and/or BIC

Prior to the use or occupation of any building the applicant must demonstrate that it has the benefit of a building information certificate or occupation certificate issued for the buildings identified in the Further Updated Statement of Environmental Effects prepared by Planners North dated 17 June 2025.

Any buildings that do not comply with this condition within 2 years of this consent are to be demolished in accordance with the conditions at Part E of this consent.

Condition reason: To ensure safety and compliance with the NCC/BCA

23. The Respondent argues that the imposition of the condition is warranted for the following reasons:

24. That the condition is responsive to the form of the Development Application itself. The intent of the Development Application is to seek the use of unlawfully constructed structures.

25. The current owners, and leaseholders, were on notice that the structures were unlawfully constructed. In particular, the registered lease acknowledges the requirement for Development Application consent for the use of those structures.

26. The Applicant has been on notice of the scope of works in the BCA Audit Report since June 2025 and a two-year period is reasonable to complete the works identified.

27. The Respondents condition is consistent with the principle of finality and certainty, and s 22 of the LEC Act. It will allow the parties to make submissions to the Court in the Class 4 proceedings (Tweed v Cooke) that no further orders or oversight by the Court is required.

28. If the Respondents condition is imposed there will be certainty that the site will not contain any unauthorised buildings or uses.

29. Further, Mr Farrell for the Respondent argues that the imposition of such a condition is consistent with the power of s 4.17 of the EPA Act as follows:

30. Pursuant to s 4.17(1)(d) of the EPA Act, the Court is empowered to impose a condition which limits the period during which development may be carried out in accordance with the consent. Condition 22 is such a condition.

31. Pursuant to s 4.17(1)(e) of the EPA Act, the Court is empowered to impose a condition requiring the removal of buildings and works (or any part of them) at the expiration of the period imposed under s 4.17(d).

32. Pursuant to s 4.17(1)(f) of the EPA Act, the Court has the power to require the carrying out of works (in this case demolition) where it relates to a matter referred to in s 4.15(1) of the EPA Act. Mr Farrell argues that the condition is referrable to the fact that the structures are unlawful (unregularised farm buildings) making their demolition warranted.

33. Mr Farrell argues that the Court has the power to impose the condition and on merit should do so.

34. Mr O’Gorman-Hughes for the Applicant argues that the Respondents condition is unreasonable for four broad reasons. They are:

35. The condition proposed by the Respondent is outside the scope of the development sought under the Development Application. Further, the Council cannot use the desire to avoid an enforcement as a reason to impose a condition.

36. The conditions agreed to be imposed on the consent, including the requirement to comply with the recommendations of the BCA Audit Report, will require numerous matters to be resolved to achieve compliance with the NCC/BCA. The Respondent’s proposed wording of Condition 22 is unreasonably onerous.

37. The two year time period for compliance with the BCA Audit Report and the conditions of consent in unreasonable.

38. The requirement for demolition in circumstances where compliance is not achieved in the time period, is a disproportionate response.

39. The Applicant seeks for Condition 22 to be amended and imposed as follows:

22. Occupation certificate and/or BIC

Prior to the use or occupation of any building the applicant must demonstrate that it has the benefit of a building information certificate or occupation certificate issued for the buildings identified in the Further Updated Statement of Environmental Effects prepared by Planners North dated 17 June 2025. The certificate is to be obtained within 2 years of this consent.

Condition reason: To ensure safety and compliance with the NCC/BCA

28. Mr O’Gorman-Hughes argues that the Court should grant consent to the Development Application, imposing the Applicant’s version of Condition 22. He asserts that the imposition of the Respondent’s condition would have the effect of altering the Development Application to the extent that the consent would not be a determination of the Development Application before the Court: Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

Findings

29. I am satisfied that the Court has the power to impose the condition sought by the Respondent at paragraph [22] pursuant to ss 4.17(1)(a) and 4.17(1)(c) for the reasons advanced by Mr Farrell and summarised at [24].

30. Further, I find that it is appropriate to impose the Respondent’s version of Condition 22 as to do so will ensure that structures do not remain on the site that are not in conformance with the NCC/BCA and the remaining conditions imposed on the development consent. I am satisfied that the period of two years is sufficient to address the recommendations of the BCA Audit Report, and I note the Applicant does not provide any evidence to the Court to support a submission to the contrary.

31. In circumstances where the intent of the Development Application is to regularise the use of unauthorised structures, I am not persuaded by the submissions of Mr O’Gorman-Hughes that the imposition of the condition would have the effect of altering the Development Application to the extent that the consent would not be a determination of the Development Application before the Court. In my view the condition is responsive to the development, the subject of the application, and the impacts/risks arising from that development. For example, the BCA Audit Report identifies the requirement for structural certification of some structures on the land, the identification of unobstructed paths of travel to an exit and the like. These are matters of safety arising from the granting of consent for the use of the farm buildings for storage: s 4.15(1)(b) of the EPA Act and cl 69 of the EPA Regulation 2021.

BIC Application

32. As noted at [4] the effect of the decision in Scarfe is that the is no power for the Court to amend the BIC Application. The planning experts in the proceedings, Mr Stephen O’Connor and Mr Ray Darney agree that the plans and documents accompanying the BIC Application are now inconsistent with the Development Application given its evolution during the proceedings. Further, they agree that BIC Application has no utility, and a fresh BIC Application should be made to the Council once the Development Application is determined, if it is required.

33. I accept the agreement of the planning experts and make orders dismissing the appeal in the BIC Application proceedings accordingly.

Orders

34. Proceedings 2023/192915 (DA Proceedings) the Court orders that:

35. The appeal is upheld.

36. Development consent is granted to Development Application 22/0601 for use of existing buildings and structures as farm buildings (storage and carport) at Lot 34 in DP 755714 and Lot 3 in DP 1264574 known as 2956 Kyogle Road, Kunghur subject to the conditions at Annexure A.

37. Exhibits are returned with the exception of Exhibit 2, A and B.

38. Proceedings 2023/193058 (BIC Application) the Court orders that:

39. The appeal is dismissed.

40. Building information certificate application BC22/0058 is refused.

41. All exhibits are returned.

D Dickson

Commissioner of the Court

Annexure A (273 KB, pdf)

**********