COMMISSIONER: These proceedings relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against Oberon Council's ('Council') deemed refusal of Development Application No. DA-10.2019.15.1 ('DA') for the use of part of the existing tracks as roads to maintain grazing land associated with use of the property for extensive agriculture, and associated stabilisation and rehabilitation works.
Kiangatha Holdings Pty Ltd (Applicant) owns a large land holding of about 300 hectares comprised of 12 separate lots:
The DA relates to the above land with the exception of Lot 9 in DP 1213121 which is located in the City of Lithgow ('Land').
The applicant seeks leave to rely on the following amended plans and documentation:
DESCRIPTION PREPARED BY REV DATE
Open Track Operational Environmental Management Plan Landloch - Simon Buchanan 1 06 May 2020
Closed Track Rehabilitation Plan Landloch - Simon Buchanan 1 06 May 2020
[2]
The Council commissioned an assessment of the amended DA from SJB Planning. A copy of that report has been provided to me and is marked "A" and has been placed on the Court file. Noting, where in that report the author refers to rehabilitation works being carried out to enable use of open tracks, those rehabilitation works are in fact to occur on closed tracks (not open tracks) pursuant to the closed track rehabilitation plan. The stabilisation works, as set out in the Open Track Operational Environmental Plan are to occur on the open tracks.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act') between the parties, which was held on 3-4 December 2019; 7 May 2020; 30 June 2020; 24 July 2020 and 7 August 2020. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant development consent to the development application subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in an agreed statement.
After a consideration of the jurisdictional matters identified by the parties in their agreed statement and the legislation and documentation outlined below I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
Relevantly, s 1.7 of the EPA Act provides that it has effect subject to the provisions of Pt 7 of the Biodiversity Conservation Act 2016 ('the BC Act') and Pt 7A of the Fisheries Management Act 1994 ('the Fisheries Act') that relate to the operation of the Act in connection with the terrestrial and aquatic environment.
Section 4.15 of the EPA Act further provides that the Court must take into consideration the likely impacts of the development, including environmental impacts on both the natural and built environments and the suitability of the site for the development.
Part 7 of the BC Act prevails to the extent of any inconsistency between that Part and the EPA Act.
Part 7 of the BC Act requires that a development application be assessed to determine whether the proposal will be 'likely to significantly affect threatened species" - as defined in s 7.2.
(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if:
(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or
(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or
(c) it is carried out in a declared area of outstanding biodiversity value.
(2) To avoid doubt, subsection (1) (b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979.
Section 7.3 of the BC Act requires a consent authority to "take into account" whether a proposed development is likely to significantly affect threatened species or ecological communities or their habitats. If the consent authority considers that the proposed development is likely to significantly affect threatened species, then the application must be accompanied by a biodiversity development assessment report.
The amended DA is accompanied by an Ecological Assessment of the rehabilitation works set out in the Open Track Operational Management Plan dated 23 April 2020 prepared by Abel Ecology. The assessment concludes (at p 35) that the proposed works are not likely to significantly affect the Endangered Ecological Communities (EECs) of White Box - Yellow Box - Blakely's Red Gum Woodland EEC or the Montane Peatlands & Swamps EEC. The 5-part tests undertaken by Abel Ecology are at Appendix 1 of the assessment report.
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (SEPP Drinking Water) applies to the Land. Clause 10 of SEPP Drinking Water provides that a consent authority must not grant consent to development on land in the catchment unless it is satisfied that the proposed development would have a neutral or beneficial effect on water quality.
The amended DA was referred to Water NSW. By correspondence dated 29 May 2020 Water NSW advised that 'based on the site inspections and information provided, Water NSW considers that the proposed development is likely to achieve a neutral or beneficial effect on water quality provided appropriate conditions are included in any development consent and are subsequently implemented'. Relevantly, conditions of consent relating to water quality have been included in the conditions of consent.
The application required concurrence of Water NSW pursuant to cl 11(1) of the SEPP Drinking Water and that concurrence was provided in correspondence dated 29 May 2020.
State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the Land. Clause 7 of SEPP 55 provides that a consent authority must not consent to the carrying out of any development unless it has considered whether the land is contaminated and whether the land is suitable for the proposed use. The planning assessment prepared by SJB Planning at Annexure A, considered the matter and concludes at p20 that the 'existing tracks' are considered likely to be suitable for the use for the purpose of roads for the maintenance of the land only.
The Oberon Local Environmental Plan 2013 (LEP) applies to the Land. It is zoned RU1 Primary Production pursuant to the LEP and the works are permissible with consent.
Clause 2.3 of the LEP requires the consent authority to 'have regard' to the zone objectives. They provide as follows:
• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
• To encourage diversity in primary industry enterprises and systems appropriate for the area.
• To minimise the fragmentation and alienation of resource lands.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To enable other forms of development associated with primary production activities, which may require an isolated location or which support tourism or recreational activities.
The "Six-Foot Track" is identified as a heritage item at Schedule 5 of the LEP. The track traverses (but does not form part of the Land) part of the Land (see: Figure 15, p 22, SJB Planning report).
Clause 5.10(4) of the LEP requires the consent authority to consider the effect of the proposed development on the heritage significance of the item, as the Land does not form part of the item cl 5.10(4) is not triggered.
Clause 5.10(8) requires consideration of impacts on Aboriginal Places and objects. There are no Aboriginal Places of Heritage Significance identified within the Land that have been identified as part of a heritage study adopted by the Council. Notwithstanding, an unexpected finds condition has been imposed on the consent.
Clause 6.1(3) of the LEP requires the consent authority to consider the following matters prior to any grant of consent:
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
The matters required to be considered have been addressed in the following documents:
1. Open Track Operational Environmental Management Plan;
2. Ecological Assessment of the rehabilitation works set out in the Open Track Operational Environmental Management Plan;
3. Rehabilitation Plan; and
4. Track Weed Control Plan.
Conditions of consent have also been proposed to address the matters arising in the reports.
The original DA lodged with Council was placed on notification between 5 August 2019 and 23 August 2019. 11 submissions were received, including a submission from Crown Lands.
The issues raised in the submissions have been addressed in the amended DA and include:
1. Nature of the proposed use;
2. Sediment and erosion impact and impacts on the Sydney Drinking Water Catchment;
3. Loss of native vegetation and impact on EEC's; and
4. Impact on the heritage listed Six Foot Track.
(Noting, that the submissions are addressed in detail at p 29 of the SJB Planning report).
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 that:
1. The Applicant is granted leave to rely on the following amended plans and documentation:
DESCRIPTION PREPARED BY REV DATE
Open Track Operational Environmental Management Plan Landloch - Simon Buchanan 1 06 May 2020
Closed Track Rehabilitation Plan Landloch - Simon Buchanan 1 06 May 2020
Track Weed Control Plan Abel Ecology - Dr Alison 1 22 April 2020
Hewitt & Dr Daniel McDonald
Ecological Assessment of the rehabilitation works set out in the Abel Ecology - Dr Daniel McDonald 1 23 April 2020
Open Track Operational Environmental Management Plan
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The appeal is upheld.
2. Development Application no.DA10.2019.15.1 for the use of existing tracks as roads for maintenance, extensive agriculture and grazing purposes only on Lot 26 DP 757035, Lot 9 DP 821872, Lot 1 DP 114711, Lot 113 DP 48712, Lots 302 & 303 DP 1230926, Lot 30 DP 757035, Lot 100 DP 757035, Lot 24 DP 757035, Lot 20 DP 757035, Lots 10 & 11 DP 821873 582 Glen Chee Road, GANBENANG NSW 2790 identified in Sheets 1 to 8 in the Open Track Operational Environmental Management Plan and associated stabilisation and rehabilitation works is approved subject to the conditions of consent in Annexure "A".
[4]
Senior Commissioner of the Court
Annexure A (411070, pdf)
[5]
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Decision last updated: 21 August 2020