Optima Developments Pty Ltd v Hawkesbury City Council [2024] NSWLEC 1616 | Case summary

Land and Environment Court (NSW)|2024-09-13

Judgment

COMMISSIONER: This appeal was lodged by Optima Developments Pty Ltd (applicant) under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns the refusal by Hawkesbury Local Planning Panel of development application number DA 0011/23 (DA). The DA, as amended, seeks consent for a turf farm and associated development on 54 Derrig Road, Tennyson and 982 Kurmond Road, North Richmond (Lot 3 in DP 548570 and Lot 18 in DP 16781) (site). Hawkesbury City Council (Council) is the first respondent to the appeal by virtue of s 8.15(4) of the EPA Act. On 17 January 2024, P Chandler, an adjoining property owner, was granted leave to be heard as the second respondent.

Conciliation and agreement between the parties

At the parties' request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 13 September 2024, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, to address various contentions, and subject to conditions.
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 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 statement received by the Court on 13 September 2024.

Integrated development

The development application is integrated development within the meaning of s 4.46 of the EPA Act, requiring approval from the Natural Resources Access Regulator (NRAR). On 14 April 2023, NRAR provided General Terms of Approval (GTA). I note that the GTAs are documented in parties' agreed conditions.

Designated development

Pursuant to Sch 3, s 44 of the Environmental Planning & Assessment Regulations 2021, the proposed turf farm is designated development.
Following notification, the Planning Secretary's environmental assessment requirements for the preparation of the Environmental Impact Statement (EIS) were provided on 18 November 2021 and extended on 24 October 2022 (Appendix C to the EIS).
The parties advise that in accordance with s 4.12(8) of the EPA Act, an EIS was submitted in respect of the DA. Council advises that it is satisfied that the updated Environmental Impact Statement (EIS) complies with the environmental assessment requirements as notified. I accept this advice and am also satisfied, relevantly, in this regard.

State Environmental Planning Policy (Resilience and Hazards) 2021

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, relevantly, it has considered whether the land is contaminated. The parties advise of a Soil Report by AgEnviro Solutions dated 15 August 2022 which carried out a preliminary investigation and did not reveal any contamination on the subject site. The parties advise that as the development site has a history of residential, agricultural and grazing purposes, the land is suitable for the proposed use. I accept this advice. The provisions of s 4.6 have been met.

Biodiversity Conservation Act 2016

A Biodiversity Development Assessment Report (BDAR) has been prepared in relation to the development (prepared by J Whyte (Biodiversity Assessment Method (BAM) Assessor) of Enviro Ecology and dated 15 July 2024). The parties agree with the essential findings of the BDAR which concluded that the proposed development is not likely to significantly affect threatened species. The BDAR also concluded that no EPBC listed species or ecological communities are likely to be impacted by the proposed development and therefore a referral to the Australia Government Minister for the Environment is not deemed necessary. I accept these findings.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 4, relating to koala habitat protection applies to the DA. A Koala Assessment Report (KAR) has been provided by a relevantly qualified person (J Whyte (BAM Assessor)). The KAR (pages 78-80 of the BDAR) found no signs of Koala use within the study area and no Koala scats were found. It did locate Koala feed trees on the property. All Koala feed trees are being retained. Two Koala use trees are to be removed. These trees will be offset by compensatory tree plantings within the rear forest areas of the subject property outside the development footprint. At least six compensatory trees will be planted (KAR, p 80). The KAR found the proposal has having only a small and short term impact. I accept these findings, and am satisfied in regard to s 4.9(3).
In relation to Ch 6 and water catchments, and mindful of the Stormwater Management Plan by Martens dated March 2024, I am advised that relevant matters have been considered and findings of satisfaction can be made with respect to s 6.6(2), with respect to water quality. I accept this advice and am satisfied with respect to s 6.6(2).

Zoning and Permissibility

The site is situated within RU1 Primary Production zone. Development for the purpose of a turf farm falls within the definition of intensive plant agriculture and is permissible in the zone. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of HLEP.

Acid Sulphate Soils - cl 6.1

The property is mapped as Class 5 land under the Acid Sulfate Soils map of the LEP. I accept the advice of the parties that as the proposed works on the property are not within 500 metres of an adjacent Class 1, 2, 3 or 4 land, cl 6.1 has no application to the DA.

Biodiversity - cl 6.4

The property is identified on the Terrestrial Biodiversity Map as having significant vegetation and a connectivity between significant vegetation.
Having considered the location of the proposed development, the proposed impact on vegetation, the BDAR including the Koala assessment, Council has considered the matters contained within cl 6.4(3) of the LEP and is satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact. Based on this advice I too am satisfied in this regard.

Essential Services - cl 6.7

In accordance with the advice of the parties I am satisfied that the relevant essential services under cl 6.7 are available to the property.

Notification

The development application was placed on public exhibition between 18 March 2023 and 6 April 2023. 28 Submissions were received.
Council considers that the amended application satisfactorily responds to the relevant matters raised by the objectors.

Conclusion

Based on the above reasoning, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the proposal generally.

Notation

The Court notes that: 1. The Hawkesbury City Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA 0011/23 the subject of these proceedings as shown in the following amended plans and reports: Grading & Drainage Design Plans by Martens & Associates Plan PS01-A000 Revision D Cover Sheet 21/05/2024 Plan PS01-A010 Revision D General Site Arrangement 21/05/2024 Plan PS01-A050 Revision A Development Overview Plan 21/05/2024 Plan PS01-B300 Revision C Soil/Water Management/Demolition Plan 21/05/2024 Plan PS01-B310 Revision C Soil/Water Management Details 21/05/2024 Plan PS01-C050 Revision C Earthworks Overview Plan 21/05/2024 Plan PS01-C100 Revision C Earthworks Overview Plan 26/03/2024 Plan PS01-C101 Revision C Earthworks Grading Plan/3 26/03/2024 Plan PS01-C102 Revision A Earthworks Grading Plan/4 21/05/2024 Plan PS01-C500 Revision B Earthworks Cut-Fill Plan/2 25/03/2024 Plan PS01-C501 Revision B Earthworks Cut-Fill Plan/3 25/03/2024 Plan PS01-C502 Revision A Earthworks Cut-Fill Plan/4 21/05/2024 Plan PS01-C600 Revision C Earthworks Section-Pond 3 26/03/2024 Plan PS01-C601 Revision C Earthworks Section-Pond 4 26/03/2024 Plan PS01-C602 Revision B Earthworks Sections-Bunds 21/05/2024 Plan PS01-C603 Revision A Earthworks Sections-Bunds 21/05/2024 Plan PS01-DZ00 Revision A Machinery Shed/Turning head 21/05/2024 Plan PS01-E100 Revision B Drainage Plan 26/03/24 Plan PS01-E500 Revision B Bund & Swale Sizes 25/03/2024 Plan PS01-E600 Revision B Drains Model Catchment 25/03/2024 Plan PS01-E601 Revision B Drains Model Layout/Results 25/03/2024 Plan PS01-E700 Revision B Pre Development MUSIC Plan 25/03/2024 Plan PS01-E701 Revision B Post Development MUSIC Plan 25/03/2024 Plan PS01-E702 Revision A MUSIC Results 25/03/2024 Plan PS01-G200 Revision A Sandstone Wall Long Section 21/05/2024 Plans by Altura Spatial dated 19/04/2024 Plan 19026-S1 Revision 11 Sheet 1 Overall Site Layout Plan 19026-S1 Revision 11 Sheet 2 Proposed Works Plan 19026-S1 Revision 11 Sheet 3 Proposed Re-Grading Works Plan 19026-S1 Revision 11 Sheet 4 Mapped Bio-Diversity Plan 19026-S1 Revision 11 Sheet 4b Proposed Machinery Shed Plan 19026-S1 Revision 11 Sheet 5 Proposed Vegetation to Remove Plan 19026-S1 Revision 11 Sheet 6 Proposed Nutrient Pond No. 2 Plan 19026-S1 Revision 11 Sheet 7 Proposed Nutrient Pond No. 2 Section Plan 19026-S1 Revision 11 Sheet 8 Proposed Retaining Walls 1 & 2 Section Plan 19026-S1 Revision 11 Sheet 9 Construction Notes Plan 19026-S1 Revision 11 Sheet 10 Construction Notes Machinery Shed Plans, Revision 01, by Circle Z Design dated 13/05/2024 Sheets A01 - A021-2. Soil Report by AgEnviro Solutions dated 17/05/2024. Traffic & Parking Assessment by ML Traffic Engineers dated May 2024. Arboricultural Impact Assessment Revision 3 by Urban Arbor dated 21/05/2024. Amended Land Use Conflict Risk Assessment by Edge Land Planning dated May 2024. Stormwater Management Plan Issue 2 by Martens & Associates dated 22/05/2024 2024 Spray Drift Analysis Report by Mary O'Brien dated 24/05/2024 Bushfire Assessment by Travers Environmental dated 24/05/2024 Vegetation Management Plan, 180D13-C001 by Travers Environmental dated 23/05/2024. Landscape Plans Revision 11, Issue C by New Terrain Landscape Design dated 2/05/2024 sheets 1-3. Turf Farm Construction & Operational Noise and Vibration Assessment, 1509-401/5,Revision 5 by RCA Australia dated 13 June 2024 Biodiversity Development Assessment Report Version 3.0 by Enviro Ecology dated 15/07/2024 Owners' Consent for 982 Kurmond Road, North Richmond dated 15 January 2024. Environmental Impact Statement Addendum Report Revision E dated 29 July 2024 by Optima Planning & Developments Consultants Farm Management Plan Revision F dated July 2024 by Greenway Turf Supplies (referred to as "the amended DA"). 1. On 30 August 2024 the Applicant filed with the Court a copy of the amended DA.

Orders

The Court orders: 1. The Applicant is to pay, within 28 days of these orders, the Respondent's costs thrown away as a result of the amendment to the development application, agreed at $17500, pursuant to s 8.15(3) of Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Designated Development Application DA 0011/23 (as amended) for Intensive Plant Agriculture comprising the expansion of an existing turf farm, clearing of native vegetation, demolition of two existing dwelling houses, construction of a nutrient pond, regrading of part of the site for use as turf farm, and construction of retaining walls, farm shed, drains and supporting infrastructure at 54 Derrig Road, Tennyson and 982 Kurmond Road, North Richmond, formally known as Lot 3 in DP 548570 and Lot 18 in DP 16781, is approved subject to the conditions set out in Annexure "A" to this agreement.

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 October 2024

(2023) 111 NSWLR 634

Optima Developments Pty Ltd v Hawkesbury City Council

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Judgment (16 paragraphs)

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