Universal Property Group Pty Ltd v Maitland City Council

Land and Environment Court (NSW)|2024-05-01

City Council (Respondent) Representation: Counsel: M Staunton (Applicant) H Irish (Respondent)

Solicitors: Macpherson Kelley (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/76776 2023/111936 Publication restriction: No

Judgment

COMMISSIONER: These are two appeals concerning development applications for the subdivision of land at Farley. Proceedings 2023/76776 relates to a development application lodged with Maitland City Council on 26 October 2022 for the subdivision of land known as 11, 21, 23, 25 and 33 Owlpen Lane, Farley (the Owlpen Lane site). Proceedings 2023/111936 relates to a development application lodged with the Council on 24 January 2023 for the subdivision of land known as 131 Wollombi Road, Farley (the Wollombi Road site). Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged each appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority in each of the appeals, the Court has the power to determine the development applications pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in each appeal, outlined in [18] and [20] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

In proceedings 2023/76776 (11, 21, 23, 25 and 33 Owlpen Lane, Farley)

In the proceedings concerning the Owlpen Lane site, which relate to development application DA/2022/1133, each of the preconditions to the grant of development consent identified by the parties is met, for the following reasons: 1. The Owlpen Lane site is predominantly zoned R1 General Residential, with a small portion at the eastern boundary zoned RU2 Rural Landscape, pursuant to the Maitland Local Environmental Plan 2011 (MLEP). The subdivision of land is permissible with consent under cl 2.6 of the MLEP. 2. Clause 4.1 of the MLEP imposes minimum subdivision lot sizes of 450m2 for the R1 zoned land, and 400,000m2 for the RU2 zoned land, with an exception to the latter in cl 4.2C for split zones. Clause 4.2C allows the exception to apply if a resulting lot containing the RU2 zoned land contains both all of the land in the RU2 zone that was in the original lot, and an area of R1 land that is not less than the minimum lot size of 450m2. The development application, as amended, complies with the minimum subdivision lot size development standards pursuant to cll 4.1 and 4.2C, as the proposed subdivided lots meet the minimum subdivision lot size of 450m2 and proposed Lot 108 meets the criteria for the exception in cl 4.2C as it contains all of the RU2 zoned land as well as an area of R1 land that is greater than 450m2. 3. There are two heritage items located near the Owlpen Lane site, and a Statement of Heritage Impact dated 27 August 2022 has been provided that is consistent with cl 5.10(5) of the MLEP. 4. Clause 5.21 of the MLEP, concerning flood planning, applies to the Owlpen Lane site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application, as amended, is supported by civil engineering plans dated April 2024 and a Stormwater Drainage Strategy prepared by GCA Engineering dated 4 March 2024. Based on those documents, I have considered the matters in cl 5.21(3) of the MLEP and I am satisfied of the matters in cl 5.21(2). 5. Clause 6.1 of the MLEP, which concerns arrangements for designated state public infrastructure, continues to apply to both the Wollombi Road site and the Owlpen Lane site as a result of the savings provision in s 4 of the State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023. Both sites form part of the Farley Urban Release Area and cl 6.1 prevents the grant of consent "unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot". On 26 April 2024, a Satisfactory Arrangements Certificate was issued by delegation which certifies that satisfactory arrangements have been made for the Owlpen Lane site in accordance with cl 6.1 of the MLEP. 6. Clause 6.2 of the MLEP concerns public utility infrastructure, and prevents the grant of consent for the development of land in an urban release area "unless the Council is satisfied that any public utility infrastructure that is essential for the purposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required". Public utility infrastructure is defined to include infrastructure for the supply of water and electricity. Based on the survey plan dated 7 October 2021, the Amended Statement of Environmental Effects dated 11 April 2024, the Draft Water and Sewer Reticulation Layout Plans and the Formal Notice of Requirements issued by Hunter Water Corporations on 26 April 2024, I am satisfied of the matters in cl 6.2. 7. Clause 6.3 of the MLEP prevents the grant of consent for development in an urban release area "unless a development control plan that provides for the matters specified in subclause (3) has been prepared for the land". The Maitland Development Control Plan 2011 contains Chapter F.11, which satisfies the requirements of cl 6.3(3). 8. The development application includes earthworks for the construction of the roads and for the subdivided lots. Based on the cut and fill plan, the preliminary site investigation report dated 5 July 2022, the Stormwater Drainage Strategy dated 4 March 2024, the Preliminary Site Investigation Report dated 5 July 2022, and the Geotechnical Site Investigation dated 28 September 2022, I have considered the matters set out in cl 7.2(3) of the MLEP. 9. Clause 7.4 of the MLEP concerns riparian land and watercourses, and applies to the Owlpen Lane site. Based on the design of the proposed subdivision, the Streamlined Biodiversity Development Assessment Report (Small Area) (Version 7) dated 18 April 2024 (BDARV7), the Stormwater Drainage Strategy dated 4 March 2024, the Preliminary Site Investigation Report dated 5 July 2022, and the Geotechnical Site Investigation dated 28 September 2022, I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact, consistent with cl 7.4(4). 10. The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the BDARV7. The BDARV7 concludes that the site does not contain threated species or any areas of biodiversity values, that the areas to be cleared contain managed land that lacks an understorey and provides minimal habitat, that the more intact areas will be retained, that the proposed Vegetation Management Plan will maintain and protect the riparian corridor, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDARV7. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act. 11. A portion of the Owlpen Lane site is mapped as being key fish habitat, pursuant to the Fisheries Management Act 1994. The BDARV7 assessed the key fish habitat, and concludes that the watercourse on the site is ephemeral and not permanently inundated with water, and the short duration of the civil works would not impact on potential fish habitat or passage. As such, the BDARV7 concludes, and the parties agree, that the proposed works are unlikely to impact any threatened or protected aquatic species, and that a permit under Pt 7 of the Fisheries Management Act can be obtained for the proposed works within the key fish habitat area before a subdivision work certificate is issued. This is reflected in condition 52. 12. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to both sites. Based on the BDARV7, there is no potential impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.9(3) of the SEPP B&C. 13. Consideration has been given as to whether the Owlpen Lane site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation dated 5 July 2022, the site is or will be made suitable for the development. The agreed conditions include the carrying out of the recommendations made in the Preliminary Site Investigation. 14. The development application was publicly notified, and two submissions were received. I have considered the issues raised in those submissions.
The proposal is integrated development pursuant to s 100B of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority. The general terms of approval from the Rural Fire Service are included in the agreed conditions of development consent.
The proposal is also integrated development pursuant to s 91 of the Water Management Act 2000 as it requires a controlled activity approval due to the watercourse that spans from southwest to east. The Department of Planning and Environment - Water has provided general terms of approval under s 91 of the Water Management Act, and those terms of approval are incorporated into the conditions, at condition 78.
The proposed development is within 5m of an electricity power line, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and I have considered the content of their response.
I am satisfied that the offer to enter into a VPA meets the requirements of s 7.4 of the EPA Act, including that it provides for either the carrying out of works and dedication of land, or the payment of a monetary contribution and the carrying out of works, which will provide a material public benefit, to be used for a public purpose. The Court has the power, pursuant to s 7.7(3) of the EPA Act, to impose a condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer. The parties agree that this can be done by a deferred commencement condition, pursuant to s 4.16(3) of the EPA Act, and that the requirement to notify the proposed VPA, pursuant to s 7.5 of the EPA Act and s 204 of the EPA Regulation 2021, can be met following the grant of consent and prior to entry into the VPA (see Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 at [270]-[272]). As set out above, the works to be carried out pursuant to the VPA are not on land the subject of the development application, and the proposed development does not include the carrying out of those works. Accordingly, if approvals (including a development consent) are required for those works, the VPA requires that such approvals be separately obtained.

In proceedings 2023/111936 (131 Wollombi Road, Farley)

In the proceedings concerning the Wollombi Road site, which relate to development application DA/2023/31, each of the preconditions to the grant of development consent identified by the parties is met, for the following reasons: 1. The Wollombi Road site is predominantly zoned R1 General Residential, with a small portion at the eastern boundary zoned RU2 Rural Landscape, pursuant to the MLEP. As set out above, the subdivision of land is permissible with consent under cl 2.6 of the MLEP. 2. The development application, as amended, complies with the minimum subdivision lot size development standards pursuant to cll 4.1 and 4.2C of the MLEP, as the proposed subdivided lots meet the minimum subdivision lot size of 450m2 and proposed Lot 17 meets the criteria for the exception in cl 4.2C as it contains all of the RU2 zoned land as well as an area of R1 land that is greater than 450m2. 3. There are two heritage items located near the Wollombi Road site, and a Statement of Heritage Impact dated 11 December 2022 has been provided that is consistent with cl 5.10(5) of the MLEP. 4. Clause 5.21 of the MLEP concerns flood planning and applies to the Wollombi Road site. The development application, as amended, is supported by civil engineering plans dated April 2024 and a Stormwater Drainage Strategy prepared by GCA Engineering dated 12 January 2024. Based on those documents, I have considered the matters in cl 5.21(3) of the MLEP and I am satisfied of the matters in cl 5.21(2). 5. Clause 6.1 of the MLEP, which concerns arrangements for designated state public infrastructure, continues to apply to Wollombi Road site for the reasons expressed above at [8(5)]. On 30 April 2024, a Satisfactory Arrangements Certificate was issued by delegation which certifies that satisfactory arrangements have been made in accordance with cl 6.1 of the MLEP. 6. Clause 6.2 of the MLEP concerns public utility infrastructure and also applies to the Wollombi Road site. The development relies upon the provision of public utility infrastructure and access through the adjoining Owlpen Lane site, once works are carried out pursuant to the development consent agreed upon in proceedings 2023/76776. Once orders are made in proceedings 2023/76776 for the grant of development consent, the Court can be satisfied that adequate arrangements have been made to make public utility infrastructure available when it is required, and the parties have agreed to a condition of consent in these proceedings that the subdivision certificate is not to be issued until such time as the works on the Owlpen Lane site have been carried out. 7. The Maitland Development Control Plan 2011 contains Chapter F.11, which satisfies the requirements of cl 6.3 of the MLEP. 8. The development application includes earthworks for the construction of the roads and for the subdivided lots. Based on the cut and fill plan, the Stormwater Drainage Strategy dated 12 January 2024, the Preliminary Site Investigation Report dated 22 August 2022, and the Geotechnical Site Investigation dated 6 September 2022, I have considered the matters set out in cl 7.2(3) of the MLEP. 9. The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the BC Regulation and a biodiversity development assessment report is therefore required pursuant to the BC Act. Consistent with s 7.7 of the BC Act, the development application includes the Streamlined Biodiversity Development Assessment Report (Small Area) (Version 3) dated 1 February 2024 (BDARV3). The BDARV3 concludes that the Wollombi Road site does not contain any areas of biodiversity values, that the vegetation is highly degraded, that any threatened species that use the site do not attract species credits and would be highly mobile and adapted to modified environments, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDARV3. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act. 10. Based on the BDARV3, there is no potential impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.9(3) of the SEPP B&C. 11. Consideration has been given as to whether the Wollombi Road site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation dated 22 August 2022, the site is or will be made suitable for the development. The agreed conditions include the carrying out of the recommendations made in the Preliminary Site Investigation, including the decommissioning of the existing onsite farm dam. 12. The Wollombi Road site is near a rail corridor and adjacent to the road corridor for Wollombi Road, which has an annual average daily traffic volume of more than 20,000 vehicles, such that both ss 2.100 and 2.120 of the SEPP TI applies to the development. Consistent with the requirements of cl 2.100(2) and cl 2.120(2), I have considered the relevant guidelines based on the content of the Acoustic Assessment dated 12 December 2022. The proposed development will be carried out in accordance with the recommendations in the Acoustic Assessment that will ensure compliance with the LAeq levels in ss 2.100(3) and 2.120(3). 13. The development application was publicly notified, and no submissions were received.
The proposal is integrated development pursuant to s 100B of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority. The general terms of approval from the Rural Fire Service are included in the agreed conditions of development consent. Whilst a further Bushfire Assessment Report was provided that was updated on 29 April 2024, which post-dates the grant of the Bush Fire Safety Authority, the parties agree that the proposed development can comply with the general terms of approval issued.

Final orders

Having reached the state of satisfaction that the decision on each appeal is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties in each proceedings, I was not required to make, and have not made, any assessment of the merits of each development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Proceedings 2023/76776

In proceedings 2023/76776, the Court notes that: 1. The respondent has agreed, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application DA/2022/1133 to rely upon the following further and amended plans and documents (amended development application DA/2022/1133), as filed with the Court: Drawing No and Revision Title Prepared by Date Subdivision Plans 1 Drawing No. DA 01 Revision 8 Site Analysis The Bathla Group 3 April 2024 Drawing No. DA 02 Revision 9 Subdivision Plan 6 May 2024 Drawing No. DA 03 Revision 8 Building Envelope Plan 3 April 2024 Drawing No. DA 04 Zoning Overlay Plan 31 Jan 2023 Revision 2 Civil Engineering Plans 2 Drawing No. C00 Revision 17 Cover Sheet GCA Engineering Solutions April 2024 Drawing No. C01 Revision 7 General Arrangement Plan 10 April 2024 Drawing No. C02 Revision 7 Plan Sheet (1 of 2) 10 April 2024 Drawing No. C03 Revision 14 Plan Sheet (2 of 2) (Interim Traffic Solution) 30 April 2024 Drawing No. C03 Revision 17 Plan Sheet (2 of 2) (Final Traffic Solution) 30 April 2024 Drawing No. C04 Revision 7 Road 1 Longitudinal Section 10 April 2024 Drawing No. C05 Revision 7 Road 1 Cross Section (1 of 3) 10 April 2024 Drawing No. C06 Revision 7 Road 1 Cross Section (2 of 3) 10 April 2024 Drawing No. C07 Revision 7 Road 1 Cross Section (3 of 3) 10 April 2024 Drawing No. C08 Revision 7 Road 2 Longitudinal Section 10 April 2024 Drawing No. C09 Revision 7 Road 2 Cross Section (1 of 3) 10 April 2024 Drawing No. C10 Revision 7 Road 2 Cross Section (2 of 3) 10 April 2024 Drawing No. C11 Revision 7 Road 2 Cross Section (3 of 3) 10 April 2024 Drawing No. C12 Revision 7 Road 3 Longitudinal Section 10 April 2024 Drawing No. C13 Revision 7 Road 3 Cross Section (1 of 2) 10 April 2024 Drawing No. C14 Revision 7 Road 3 Cross Section (2 of 2) 10 April 2024 Drawing No. C15 Revision 7 Road 4 Longitudinal Section 10 April 2024 Drawing No. C16 Revision 7 Road 4 Cross Section (1 of 6) 10 April 2024 Drawing No. C17 Revision 7 Road 4 Cross Section (2 of 6) 10 April 2024 Drawing No. C18 Revision 7 Road 4 Cross Section (3 of 6) 10 April 2024 Drawing No. C19 Revision 7 Road 4 Cross Section (4 of 6) 10 April 2024 Drawing No. C20 Revision 7 Road 4 Cross Section (5 of 6) 10 April 2024 Drawing No. C21 Revision 7 Road 4 Cross Section (6 of 6) 10 April 2024 Drawing No. C22 Revision 7 Road 5 Longitudinal Section 10 April 2024 Drawing No. C23 Revision 7 Road 5 Cross Section (1 of 2) 10 April 2024 Drawing No. C24 Revision 7 Road 5 Cross Section (2 of 2) 10 April 2024 Drawing No. C25 Revision 7 Owl Pen Lane Longitudinal Section 10 April 2024 Drawing No. C26 Revision 7 Owl Pen lane Cross Section (1 of 2) 10 April 2024 Drawing No. C27 Revision 7 Owl Pen lane Cross Section (2 of 2) 10 April 2024 Drawing No. C28 Revision 11 Typical Road Sections (Interim Traffic Solution) 28 April 2024 Drawing No. C28 Revision 12 Typical Road Sections 30 April 2024 (Final Traffic Solution) Drawing No. C29 Revision 7 Stormwater Longitudinal Sections 10 April 2024 Drawing No. C30 Revision 7 Basin 1 Plan Sheet 10 April 2024 Drawing No. C31 Revision 7 Basin 2 Plan Sheet 10 April 2024 Drawing No. C32 Revision 7 Regrade Plan (1 of 2) 10 April 2024 Drawing No. C33 Revision 7 Regrade Plan (2 of 2) 10 April 2024 Drawing No. C34 Revision 7 Cut / Fill Relief Plan 10 April 2024 Drawing No. C35 Revision 7 Erosion and Sedimentation Control Plan 10 April 2024 Drawing No. C36 Revision 7 Typical Allan Block Retaining Wall Details 10 April 2024 Street Tree Planting Plans 3 LP-01 Revision 8 Street Tree Plan The Bathla Group 11 April 2024 LP-02 Revision 8 Street Tree Plan 11 April 2024 Water and Sewer Plans 4 Drawing No: WDRL01 Revision 4 Draft Reticulation Layout - Water GCA Engineering Solutions 12 April 2024 Drawing No: SDRL01 Revision 4 Draft Reticulation Layout - Sewer 12 April 2024 Reports / documents 5 Statement of Environmental Effects Universal Property Group Pty Ltd 11 April 2024 6 Response to NSW Rural Fire Service Letter Firebird ecoSultants Pty Ltd 5 April 2024 7 Streamlined Biodiversity Development Assessment Report (Small Area) (Version 7) Firebird ecoSultants Pty Ltd 18 April 2024 8 Satisfactory Arrangements Certificate SVPA2023-28 Department of Planning, Housing and Infrastructure 26 April 2024 9 Hunter Water Formal Requirements Notice Hunter Water Corporation 26 April 2024 10 Letter of Offer to enter into a VPA The Bathla Group 30 April 2024

The Court orders that: 1. The applicant is granted leave to file the amended development application DA/2022/1133 referred to in [17]. 2. The applicant is to pay the Council's costs, as agreed or as assessed, under s 8.15(3) of the Environmental Planning and Assessment Act NSW 1979. 3. The appeal is upheld. 4. Development Application No DA/2022/1133, for the subdivision of land into 108 lots comprising 105 residential lots, 1 residue lot and 2 onsite detention lots over two stages with the construction and dedication of public roads, tree removal and stormwater drainage works on land legally described as Lot 1 in DP983691, Lot 111 in DP1290111, Lot B and Lot C in DP348463, and Lot 10 in DP1229964 and known as 11, 21, 23, 25 and 33 Owlpen Lane, Farley NSW 2320, is determined by the grant of development consent subject to the conditions at Annexure A.

Proceedings 2023/111936

In proceedings 2023/111936, the Court notes that: 1. The respondent has approved, as the relevant consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending development application No DA/2023/31 to rely upon the following further and amended plans and documents (amended development application DA/2023/31), as filed with the Court: Drawing No and Revision Title Prepared by Date Subdivision Plans 1 Drawing No DA01 Revision 7 Site Analysis The Bathla Group 27 March 2024 Drawing No DA02 Revision 7 Subdivision Plan 27 March 2024 Drawing No DA03 Revision 7 Zoning Overlaid Plan 27 March 2024 Drawing No DA04 Revision 7 Building Envelope Plan 27 March 2024 Civil Engineering Plans 2 Drawing No C00 Revision 6 Cover Sheet GCA Engineering Solutions 4 April 2024 Drawing No C01 Revision 6 Plan Sheet 4 April 2024 Drawing No C02 Revision 3 Road 1 Longitudinal Section 1 September 2023 Drawing No C03 Revision 6 Road 1 Cross Sections 1 of 2 4 April 2024 Drawing No C04 Revision 6 Road 1 Cross Sections 2 of 2 4 April 2024 Drawing No C05 Revision 3 Road 2 Longitudinal and Cross Sections 1 September 2023 Drawing No C06 Revision 3 Accessway Longitudinal and Cross Sections 1 September 2023 Drawing No C07 Revision 3 Typical Road Sections 1 September 2023 Drawing No C08 Revision 6 Basin 1 & 2 Detail Plan 2 April 2024 Drawing No C09 Revision 6 Regrade Plan 2 April 2024 Drawing No C10 Revision 6 Cut / Fill Relief Plan 2 April 2024 Drawing No C11 Revision 6 Soil and Water Management Plan 2 April 2024 Drawing No C12 Revision 3 Typical Allan Block Retaining Wall Details 1 September 2023 Drawing No C13 Revision 3 Turning Movement Plan for GPT Access Pad 1 September 2023 Street Tree Plan 3 Drawing No. LP-01, Rev 06 Street Tree Plan Bathla 23 March 2024 Water and Sewer Plans 4 Drawing No: WDRL01 Revision 2 Draft Reticulation Layout - Water GCA Engineering Solutions 12 April 2024 Drawing No: SDRL01 Revision 2 Draft Reticulation Layout - Sewer 12 April 2024 Document 5 Hunter Water Requirements Bathla 23 April 2024 6 Bushfire Threat Assessment Firebird ecoSultants 6th September 2023, as revised on 29th April 2024 7 Satisfactory Arrangements Certificate - SVPA2023-8 Department of Planning, Housing and Infrastructure 30 April 2024

In proceedings 2023/111936, the Court orders that: 1. The applicant is granted leave to file the Amended Development Application DA/2023/31 referred to in [19]. 2. The applicant is to pay the respondent's costs, as agreed or as assessed, under s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is upheld. 4. Development Application No DA/2023/31, for the Torrens title subdivision of land to create 16 residential lots and 1 drainage basin lot, construction and dedication of a public road, tree removal, stormwater drainage and other associated works on land legally described as Lot 101 in DP1287298 and known as 131 Wollombi Road, Farley NSW 2320, is determined by the grant of development consent subject to the conditions at Annexure A.

Commissioner of the Court 76776.23 Annexure A 23.111936 Annexure A

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: 14 May 2024

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.100, 2.120

Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9

COMMISSIONER: These are two appeals concerning development applications for the subdivision of land at Farley. Proceedings 2023/76776 relates to a development application lodged with Maitland City Council on 26 October 2022 for the subdivision of land known as 11, 21, 23, 25 and 33 Owlpen Lane, Farley (the Owlpen Lane site). Proceedings 2023/111936 relates to a development application lodged with the Council on 24 January 2023 for the subdivision of land known as 131 Wollombi Road, Farley (the Wollombi Road site). Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged each appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority in each of the appeals, the Court has the power to determine the development applications pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in each appeal, outlined in [18 ] and [20 ] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The hearing of the two appeals, which was listed to commence on 29 April 2024, was adjourned to allow the Court to arrange a conciliation conference between the parties, under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 1 May 2024. I presided over the conciliation conference.
At the conciliation conference, in each appeal proceedings, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. In proceedings 2023/76776, concerning the Owlpen Lane site, the final signed agreement was provided on 6 May 2024 and in proceedings 2023/111936, concerning the Wollombi Road site, the final signed agreement was provided on 1 May 2024. In each matter the agreement was reached following the Council's approval of an application for an amendment to each development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021.
The development application (DA/2022/1133) that concerns the Owlpen Lane site (proceedings 2023/76776), as amended, is for the subdivision of the land into 108 lots comprising 105 residential lots, 1 residue lot and 2 lots for onsite detention. The proposed development is to be carried out over two stages, and includes the construction and dedication of public roads, tree removal and stormwater drainage works. On this development application, the applicant has also offered to enter into a voluntary planning agreement (VPA) with the Council for the carrying out of other works on land that is not the subject of the proposed development, but will either be acquired by the applicant and dedicated to the Council, or be acquired by the Council. The development the subject of the development application does not incorporate the carrying out of those works, and the plans the subject of the amended development application clearly exclude the area of land the subject of the VPA.
The development application (DA/2023/31) that concerns the Wollombi Road site (proceedings 2023/111936), as amended, is for the Torrens title subdivision of the land into 16 residential lots and 1 drainage basin lot, the construction and dedication of a public road, tree removal, stormwater drainage and other associated works. Vehicular access to the subdivided lots, as well as the provision of public utility infrastructure, will be provided by the carrying out of works that will be approved by the grant of development consent to the proposed development for the Owlpen Lane site in proceedings 2023/76776 (DA/2022/1133).
The decision agreed upon, in each matter, is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreements are each supported by an Agreed Statement on Jurisdictional Prerequisites. In each appeal, I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that, in each appeal, the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction for the reasons that follow.

In proceedings 2023/76776 (11, 21, 23, 25 and 33 Owlpen Lane, Farley)

In the proceedings concerning the Owlpen Lane site, which relate to development application DA/2022/1133, each of the preconditions to the grant of development consent identified by the parties is met, for the following reasons:

(1) The Owlpen Lane site is predominantly zoned R1 General Residential, with a small portion at the eastern boundary zoned RU2 Rural Landscape, pursuant to the Maitland Local Environmental Plan 2011 (MLEP). The subdivision of land is permissible with consent under cl 2.6 of the MLEP.

(2) Clause 4.1 of the MLEP imposes minimum subdivision lot sizes of 450m2 for the R1 zoned land, and 400,000m2 for the RU2 zoned land, with an exception to the latter in cl 4.2C for split zones. Clause 4.2C allows the exception to apply if a resulting lot containing the RU2 zoned land contains both all of the land in the RU2 zone that was in the original lot, and an area of R1 land that is not less than the minimum lot size of 450m2. The development application, as amended, complies with the minimum subdivision lot size development standards pursuant to cll 4.1 and 4.2C, as the proposed subdivided lots meet the minimum subdivision lot size of 450m2 and proposed Lot 108 meets the criteria for the exception in cl 4.2C as it contains all of the RU2 zoned land as well as an area of R1 land that is greater than 450m2.

(3) There are two heritage items located near the Owlpen Lane site, and a Statement of Heritage Impact dated 27 August 2022 has been provided that is consistent with cl 5.10(5) of the MLEP.

(4) Clause 5.21 of the MLEP, concerning flood planning, applies to the Owlpen Lane site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application, as amended, is supported by civil engineering plans dated April 2024 and a Stormwater Drainage Strategy prepared by GCA Engineering dated 4 March 2024. Based on those documents, I have considered the matters in cl 5.21(3) of the MLEP and I am satisfied of the matters in cl 5.21(2).

(5) Clause 6.1 of the MLEP, which concerns arrangements for designated state public infrastructure, continues to apply to both the Wollombi Road site and the Owlpen Lane site as a result of the savings provision in s 4 of the State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023. Both sites form part of the Farley Urban Release Area and cl 6.1 prevents the grant of consent "unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot". On 26 April 2024, a Satisfactory Arrangements Certificate was issued by delegation which certifies that satisfactory arrangements have been made for the Owlpen Lane site in accordance with cl 6.1 of the MLEP.

(6) Clause 6.2 of the MLEP concerns public utility infrastructure, and prevents the grant of consent for the development of land in an urban release area "unless the Council is satisfied that any public utility infrastructure that is essential for the purposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required". Public utility infrastructure is defined to include infrastructure for the supply of water and electricity. Based on the survey plan dated 7 October 2021, the Amended Statement of Environmental Effects dated 11 April 2024, the Draft Water and Sewer Reticulation Layout Plans and the Formal Notice of Requirements issued by Hunter Water Corporations on 26 April 2024, I am satisfied of the matters in cl 6.2.

(7) Clause 6.3 of the MLEP prevents the grant of consent for development in an urban release area "unless a development control plan that provides for the matters specified in subclause (3) has been prepared for the land". The Maitland Development Control Plan 2011 contains Chapter F.11, which satisfies the requirements of cl 6.3(3).

(8) The development application includes earthworks for the construction of the roads and for the subdivided lots. Based on the cut and fill plan, the preliminary site investigation report dated 5 July 2022, the Stormwater Drainage Strategy dated 4 March 2024, the Preliminary Site Investigation Report dated 5 July 2022, and the Geotechnical Site Investigation dated 28 September 2022, I have considered the matters set out in cl 7.2(3) of the MLEP.

(9) Clause 7.4 of the MLEP concerns riparian land and watercourses, and applies to the Owlpen Lane site. Based on the design of the proposed subdivision, the Streamlined Biodiversity Development Assessment Report (Small Area) (Version 7) dated 18 April 2024 (BDARV7), the Stormwater Drainage Strategy dated 4 March 2024, the Preliminary Site Investigation Report dated 5 July 2022, and the Geotechnical Site Investigation dated 28 September 2022, I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact, consistent with cl 7.4(4).

(10) The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the BDARV7. The BDARV7 concludes that the site does not contain threated species or any areas of biodiversity values, that the areas to be cleared contain managed land that lacks an understorey and provides minimal habitat, that the more intact areas will be retained, that the proposed Vegetation Management Plan will maintain and protect the riparian corridor, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDARV7. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

(11) A portion of the Owlpen Lane site is mapped as being key fish habitat, pursuant to the Fisheries Management Act 1994. The BDARV7 assessed the key fish habitat, and concludes that the watercourse on the site is ephemeral and not permanently inundated with water, and the short duration of the civil works would not impact on potential fish habitat or passage. As such, the BDARV7 concludes, and the parties agree, that the proposed works are unlikely to impact any threatened or protected aquatic species, and that a permit under Pt 7 of the Fisheries Management Act can be obtained for the proposed works within the key fish habitat area before a subdivision work certificate is issued. This is reflected in condition 52.

(12) Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to both sites. Based on the BDARV7, there is no potential impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.9(3) of the SEPP B&C.

(13) Consideration has been given as to whether the Owlpen Lane site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation dated 5 July 2022, the site is or will be made suitable for the development. The agreed conditions include the carrying out of the recommendations made in the Preliminary Site Investigation.

(14) The development application was publicly notified, and two submissions were received. I have considered the issues raised in those submissions.

The proposal is integrated development pursuant to s 100B of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority. The general terms of approval from the Rural Fire Service are included in the agreed conditions of development consent.
The proposal is also integrated development pursuant to s 91 of the Water Management Act 2000 as it requires a controlled activity approval due to the watercourse that spans from southwest to east. The Department of Planning and Environment - Water has provided general terms of approval under s 91 of the Water Management Act, and those terms of approval are incorporated into the conditions, at condition 78.
The proposed development is within 5m of an electricity power line, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and I have considered the content of their response.
I am satisfied that the offer to enter into a VPA meets the requirements of s 7.4 of the EPA Act, including that it provides for either the carrying out of works and dedication of land, or the payment of a monetary contribution and the carrying out of works, which will provide a material public benefit, to be used for a public purpose. The Court has the power, pursuant to s 7.7(3) of the EPA Act, to impose a condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer. The parties agree that this can be done by a deferred commencement condition, pursuant to s 4.16(3) of the EPA Act, and that the requirement to notify the proposed VPA, pursuant to s 7.5 of the EPA Act and s 204 of the EPA Regulation 2021, can be met following the grant of consent and prior to entry into the VPA (see Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 at [270]- [272]). As set out above, the works to be carried out pursuant to the VPA are not on land the subject of the development application, and the proposed development does not include the carrying out of those works. Accordingly, if approvals (including a development consent) are required for those works, the VPA requires that such approvals be separately obtained.

In proceedings 2023/111936 (131 Wollombi Road, Farley)

In the proceedings concerning the Wollombi Road site, which relate to development application DA/2023/31, each of the preconditions to the grant of development consent identified by the parties is met, for the following reasons:

(1) The Wollombi Road site is predominantly zoned R1 General Residential, with a small portion at the eastern boundary zoned RU2 Rural Landscape, pursuant to the MLEP. As set out above, the subdivision of land is permissible with consent under cl 2.6 of the MLEP.

(2) The development application, as amended, complies with the minimum subdivision lot size development standards pursuant to cll 4.1 and 4.2C of the MLEP, as the proposed subdivided lots meet the minimum subdivision lot size of 450m2 and proposed Lot 17 meets the criteria for the exception in cl 4.2C as it contains all of the RU2 zoned land as well as an area of R1 land that is greater than 450m2.

(3) There are two heritage items located near the Wollombi Road site, and a Statement of Heritage Impact dated 11 December 2022 has been provided that is consistent with cl 5.10(5) of the MLEP.

(4) Clause 5.21 of the MLEP concerns flood planning and applies to the Wollombi Road site. The development application, as amended, is supported by civil engineering plans dated April 2024 and a Stormwater Drainage Strategy prepared by GCA Engineering dated 12 January 2024. Based on those documents, I have considered the matters in cl 5.21(3) of the MLEP and I am satisfied of the matters in cl 5.21(2).

(5) Clause 6.1 of the MLEP, which concerns arrangements for designated state public infrastructure, continues to apply to Wollombi Road site for the reasons expressed above at [8(5)]. On 30 April 2024, a Satisfactory Arrangements Certificate was issued by delegation which certifies that satisfactory arrangements have been made in accordance with cl 6.1 of the MLEP.

(6) Clause 6.2 of the MLEP concerns public utility infrastructure and also applies to the Wollombi Road site. The development relies upon the provision of public utility infrastructure and access through the adjoining Owlpen Lane site, once works are carried out pursuant to the development consent agreed upon in proceedings 2023/76776. Once orders are made in proceedings 2023/76776 for the grant of development consent, the Court can be satisfied that adequate arrangements have been made to make public utility infrastructure available when it is required, and the parties have agreed to a condition of consent in these proceedings that the subdivision certificate is not to be issued until such time as the works on the Owlpen Lane site have been carried out.

(7) The Maitland Development Control Plan 2011 contains Chapter F.11, which satisfies the requirements of cl 6.3 of the MLEP.

(8) The development application includes earthworks for the construction of the roads and for the subdivided lots. Based on the cut and fill plan, the Stormwater Drainage Strategy dated 12 January 2024, the Preliminary Site Investigation Report dated 22 August 2022, and the Geotechnical Site Investigation dated 6 September 2022, I have considered the matters set out in cl 7.2(3) of the MLEP.

(9) The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the BC Regulation and a biodiversity development assessment report is therefore required pursuant to the BC Act. Consistent with s 7.7 of the BC Act, the development application includes the Streamlined Biodiversity Development Assessment Report (Small Area) (Version 3) dated 1 February 2024 (BDARV3). The BDARV3 concludes that the Wollombi Road site does not contain any areas of biodiversity values, that the vegetation is highly degraded, that any threatened species that use the site do not attract species credits and would be highly mobile and adapted to modified environments, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDARV3. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

(10) Based on the BDARV3, there is no potential impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.9(3) of the SEPP B&C.

(11) Consideration has been given as to whether the Wollombi Road site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation dated 22 August 2022, the site is or will be made suitable for the development. The agreed conditions include the carrying out of the recommendations made in the Preliminary Site Investigation, including the decommissioning of the existing onsite farm dam.

(12) The Wollombi Road site is near a rail corridor and adjacent to the road corridor for Wollombi Road, which has an annual average daily traffic volume of more than 20,000 vehicles, such that both ss 2.100 and 2.120 of the SEPP TI applies to the development. Consistent with the requirements of cl 2.100(2) and cl 2.120(2), I have considered the relevant guidelines based on the content of the Acoustic Assessment dated 12 December 2022. The proposed development will be carried out in accordance with the recommendations in the Acoustic Assessment that will ensure compliance with the LAeq levels in ss 2.100(3) and 2.120(3).

(13) The development application was publicly notified, and no submissions were received.

The proposal is integrated development pursuant to s 100B of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority. The general terms of approval from the Rural Fire Service are included in the agreed conditions of development consent. Whilst a further Bushfire Assessment Report was provided that was updated on 29 April 2024, which post-dates the grant of the Bush Fire Safety Authority, the parties agree that the proposed development can comply with the general terms of approval issued.

Having reached the state of satisfaction that the decision on each appeal is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties in each proceedings, I was not required to make, and have not made, any assessment of the merits of each development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

In proceedings 2023/76776, the Court notes that:

(1) The respondent has agreed, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application DA/2022/1133 to rely upon the following further and amended plans and documents (amended development application DA/2022/1133), as filed with the Court:

Streamlined Biodiversity Development Assessment Report (Small Area) (Version 7)

(1) The applicant is granted leave to file the amended development application DA/2022/1133 referred to in [17 ].

(2) The applicant is to pay the Council's costs, as agreed or as assessed, under s 8.15(3) of the Environmental Planning and Assessment Act NSW 1979.

(3) The appeal is upheld.

(4) Development Application No DA/2022/1133, for the subdivision of land into 108 lots comprising 105 residential lots, 1 residue lot and 2 onsite detention lots over two stages with the construction and dedication of public roads, tree removal and stormwater drainage works on land legally described as Lot 1 in DP983691, Lot 111 in DP1290111, Lot B and Lot C in DP348463, and Lot 10 in DP1229964 and known as 11, 21, 23, 25 and 33 Owlpen Lane, Farley NSW 2320, is determined by the grant of development consent subject to the conditions at Annexure A.

In proceedings 2023/111936, the Court notes that:

(1) The respondent has approved, as the relevant consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending development application No DA/2023/31 to rely upon the following further and amended plans and documents (amended development application DA/2023/31), as filed with the Court:

Road 1 Cross Sections 1 of 2

Road 1 Cross Sections 2 of 2

In proceedings 2023/111936, the Court orders that:

(1) The applicant is granted leave to file the Amended Development Application DA/2023/31 referred to in [19 ].

(2) The applicant is to pay the respondent's costs, as agreed or as assessed, under s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) The appeal is upheld.

(4) Development Application No DA/2023/31, for the Torrens title subdivision of land to create 16 residential lots and 1 drainage basin lot, construction and dedication of a public road, tree removal, stormwater drainage and other associated works on land legally described as Lot 101 in DP1287298 and known as 131 Wollombi Road, Farley NSW 2320, is determined by the grant of development consent subject to the conditions at Annexure A.

Planning and Assessment Act 1979

Conservation Act 2016

Environment Court Act 1979

Conservation Regulation 2017

Planning and Assessment Regulation 2021

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (1)