UPG 257 Pty Ltd v Maitland City Council

Whether there are any jurisdictional constraints to the exercise of the function to grant development consent

1. 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) 257 LGERA 374; [2023] NSWCA 183 (McMillan) at [65]). 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 "statement of jurisdictional pre-requisites" received by the Court on 23 April 2024 and updated on 29 April 2024.

Integrated development

1. The DA (as amended) has been referred to NSW Rural Fire Services (RFS) as integrated development pursuant to s 4.47 of the EPA Act as the Site is mapped as Bushfire Prone Land. The RFS has issued general terms of approval and a Bush Fire Safety Authority under s 100B of the Rural Fires Act 1997 (RF Act) with respect to the DA (including in regard to the final amendments). The documentation at Schedule 1 of Annexure A (proposed consent conditions) demonstrates this.

Maitland Local Environmental Plan 2011

1. The site is zoned R1 General Residential and there is no dispute that the proposal is entirely permissible within the zone and having regard to cll 2.6 and 2.7, with respect to subdivision and demolition respectively.
2. The parties' statement of jurisdictional pre-requisites outlines how the proposal does not breach any development standard under Maitland Local Environmental Plan 2011 (MLEP), and how Council has given consideration to all relevant matters. In terms of specific requirements for a positive finding on the part of the Court, in relation to jurisdiction, I note the following: 1. Under savings provisions at s 4 to State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023 (made on 1 October 2023), the repealed cl 6.1 of MLEP continues to apply to the DA (lodged 26 October 2022). The essential relevant requirement of cl 6.1 is that development consent must not be granted for the subdivision unless the Planning Secretary has certified in writing that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure. The parties have filed a Satisfactory Arrangements Certificate from the Planning Secretary's delegate, dated 29 April 2024, to the effect that this has occurred. 2. With respect to cl 6.2, Council has confirmed it is the case that public utility infrastructure, that is essential for the proposed development, is available or that adequate arrangements have been made to make that infrastructure available when it is required. I note the indications of liaison with Hunter Water Corporations (and its formal Notice of Requirements) in regard to water and sewer and the indications of availability of electricity to the site when required. I am satisfied in regard to the question at cl 6.2(1). 3. I accept the advice of the parties that, with respect to cl 6.3, an applicable development control plan is in place.

Biodiversity Conservation Act 2016

1. According to the parties the ecological assessment accompanying the DA, as amended, appropriately assesses the potential impact of the DA with respect to Pt 7 of the Biodiversity Conservation Act 2016 (BC Act). Of note in the assessment's findings, according to the parties' statement of jurisdictional pre-requisites (par 59): "a) the Site is not identified on the Biodiversity Values Map; b) the vegetation within the site has been modified to an extent that it would no longer be representative of a form of Lower Hunter Spotted Gum - Ironbark Forest; c) the vegetations proposed for removal within the Site are of exotic nature; and d) there would be no significant effect on threatened species, populations or ecological communities."
2. Council advises that it has come to the conclusion that the DA, as amended, is not likely to significantly affect threatened species or ecological communities or their habitats, pursuant to Pt 7 of the BC Act. In turn this means that there is no requirement for a Biodiversity Assessment Report under s 7.7 of the BC Act.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. I accept the advice of the parties that a separate permit or approval from Council or the Native Vegetation Panel under State Environmental Planning Policy (Biodiversity and Conservation) 2021 is not required for the vegetation removal proposed with the DA, as amended. This circumstance is addressed in Stewart v Inner West Council [2023] NSWLEC 136, at [27].
2. For the purposes of s 4.9, Council advises it has assessed the ecological assessment prepared by Firebird EcoSultants (Tab 13 of the Class 1 Application filed 6 April 2023), which included an analysis of whether the proposal is likely to have any impact on koalas or koala habitat, and is satisfied that the proposal is likely to have low or no impact on koalas or koala habitat. Further, in relation to s 4.10, the parties advise that there is no otherwise prevention of the grant of consent in the applicable circumstances here where there is no applicable approved koala plan of management, and Council is satisfied that the site is not core koala habitat based on the assessment contained in the ecological assessment. I accept and agree with Council's conclusions in relation to s 4.9 and s 4.10.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Pursuant to s 4.6, the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that a Preliminary Site Investigation (Report No NE1164) accompanied the amendments to the DA, which concluded that the site has a low risk of soil and groundwater contamination and is suitable for the proposed development pending confirmation by a data gap assessment post demolition of the existing structures on the site. Council is satisfied that agreed conditions provide appropriately specific actions in response to the requirements of s 4.6. I agree with Council, the requirements of s 4.6 have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. The parties advise that ss 2.98 and 2.99 apply, with the site adjacent to a rail corridor and the proposal involving excavation within 25m of a rail corridor. The adjacent corridor is, in this instance, vested in or owned by the ARTC or the subject of an ARTC arrangement. In turn there are no applicable concurrence requirements. In any event, written notice was given to ARTC and the parties advise that consideration has been given to the ARTC response. Further, the parties advise that consideration has been given to 'Development near Rail Corridors and Busy Roads - Interim Guideline' published by the Department of Planning in the NSW Government Gazette No 158 on 19 December 2008 (Guideline).
2. Sections 2.100 and 2.120 concern the implications of potential noise generation from the rail corridor and from nearby Wollombi Road (which has an annual average daily traffic volume of more than 20,000 vehicles). The parties advise of the DA's expert acoustic assessment which assessed the proposal against the Guideline. Council advises me that consent conditions require the taking up of "appropriate measures" in accordance with ss 2.100(3) and 2.120(3) of State Environmental Planning Policy (Transport and Infrastructure) 2021.

Other considerations

1. While there are no other matters requiring positive jurisdictional findings of the Court (McMillan) [57]-[65]), I also note that the parties have drawn to my attention the matters listed for consideration in the relevant planning instruments and indicated how such consideration has been given. I mention here in regard to s 4.15(1)(d) of the EPA Act, that the DA has been notified in accordance with requirements and the parties advise that no objecting submissions were received.

Conclusion

1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

Notation

1. The Court notes that the Respondent has approved, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA/2022/1094 to rely upon the following further and amended plans and documents (Amended Development Application), as filed with the Court: Drawing No and Revision Title Prepared by Date Subdivision Plans 1 Drawing No DA01 Revision 7 Site Plan 12 April 2024 Drawing No DA02 Revision 7 Subdivision Plan 12 April 2024 Drawing No DA03 Revision 7 Building Envelope Plan 12 April 2024 Drawing No DA04 Revision 7 Detailed Building Envelope Plan 12 April 2024 Drawing No DA05 Revision 7 Bus Route Plan 12 April 2024 Drawing No DA06 Revision 7 Typical House Layout 12 April 2024 Civil Engineering Plans 2 Drawing No DA1-00 Revision 3 Cover Sheet High Definition West Pty Ltd 15 April 2024 Drawing No DA1-001 Revision 3 Existing Site Plan 15 April 2024 Drawing No DA1-002 Revision 3 Overall Site Plan 15 April 2024 Drawing No DA1-003 Revision 6 Site Cut-Fill Plan 15 April 2024 Drawing No DA1-004 Revision 6 Font Hill Drive Longitudinal Section 15 April 2024 Drawing No DA1-005 Revision 3 Font Hill Drive Cross Section - Sheet 1 of 2 15 April 2024 Drawing No DA1-006 Revision 3 Font Hill Drive Cross Section - Sheet 2 of 2 15 April 2024 Drawing No DA1-007 Revision 3 Road 1 Longitudinal Section 15 April 2024 Drawing No DA1-008 Revision 3 Road 1 Cross Section - Sheet 1 of 2 15 April 2024 Drawing No DA1-009 Revision 3 Road 1 Cross Section - Sheet 2 of 2 15 April 2024 Drawing No DA1-010 Revision 3 Becher Road Longitudinal Section 15 April 2024 Drawing No DA1-011 Revision 3 Becher Road Cross Section - Sheet 1 of 2 15 April 2024 Drawing No DA1-012 Revision 3 Becher Road Cross Section - Sheet 2 of 2 15 April 2024 Drawing No DA1-013 Revision 3 Typical Road Cross Sections 15 April 2024 Drawing No DA1-014 Revision 3 Detention Basin Layout 15 April 2024 Drawing No DA1-015 Revision 3 Erosion and Sediment Control Plan 15 April 2024 Drawing No DA1-016 Revision 1 Erosion and Sediment Control Details 1 September 2022 Drawing No DA1-017 Revision 2 Retaining Wall Details 17 July 2023 Street Tree Plan 3 Drawing No LP-01 Street Tree Plan 17 April 2024 Revision 4 Sewer Plan 4 Drawing No: SDRL01 Revision 4 Draft Sewer Reticulation Layout GCA Engineering Solutions 25 March 2024 Reports / documents 5 Updated Hunter Water Notice of Formal Requirements Hunger Water Corporation 5 April 2024 6 Bushfire Threat Assessment Firebird ecoSultants Pty Ltd 15 April 2024 7 Landowners Consent Wollombi Road Holdings Pty Ltd 19 April 2024

Orders

1. The Court orders that: 1. The Applicant is granted leave to file the Amended Development Application with the Court. 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 1979. 3. The appeal is upheld. 4. Development Application No DA/2022/1094, for the Torrens title subdivision of land into 29 x residential lots and the construction and dedication of 3 x public roads including tree removal and stormwater drainage works on land legally described as Lot 23 in DP701849 and known as 176 Wollombi Road, Farley and Lot 529 in DP1275320 and known as 1 Becher Road, Farley NSW 2320, is determined by the grant of development consent subject to the conditions at 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: 02 May 2024

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. I accept the advice of the parties that a separate permit or approval from Council or the Native Vegetation Panel under State Environmental Planning Policy (Biodiversity and Conservation) 2021 is not required for the vegetation removal proposed with the DA, as amended. This circumstance is addressed in Stewart v Inner West Council [2023] NSWLEC 136, at [27].
2. For the purposes of s 4.9, Council advises it has assessed the ecological assessment prepared by Firebird EcoSultants (Tab 13 of the Class 1 Application filed 6 April 2023), which included an analysis of whether the proposal is likely to have any impact on koalas or koala habitat, and is satisfied that the proposal is likely to have low or no impact on koalas or koala habitat. Further, in relation to s 4.10, the parties advise that there is no otherwise prevention of the grant of consent in the applicable circumstances here where there is no applicable approved koala plan of management, and Council is satisfied that the site is not core koala habitat based on the assessment contained in the ecological assessment. I accept and agree with Council's conclusions in relation to s 4.9 and s 4.10.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Pursuant to s 4.6, the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that a Preliminary Site Investigation (Report No NE1164) accompanied the amendments to the DA, which concluded that the site has a low risk of soil and groundwater contamination and is suitable for the proposed development pending confirmation by a data gap assessment post demolition of the existing structures on the site. Council is satisfied that agreed conditions provide appropriately specific actions in response to the requirements of s 4.6. I agree with Council, the requirements of s 4.6 have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. The parties advise that ss 2.98 and 2.99 apply, with the site adjacent to a rail corridor and the proposal involving excavation within 25m of a rail corridor. The adjacent corridor is, in this instance, vested in or owned by the ARTC or the subject of an ARTC arrangement. In turn there are no applicable concurrence requirements. In any event, written notice was given to ARTC and the parties advise that consideration has been given to the ARTC response. Further, the parties advise that consideration has been given to 'Development near Rail Corridors and Busy Roads - Interim Guideline' published by the Department of Planning in the NSW Government Gazette No 158 on 19 December 2008 (Guideline).
2. Sections 2.100 and 2.120 concern the implications of potential noise generation from the rail corridor and from nearby Wollombi Road (which has an annual average daily traffic volume of more than 20,000 vehicles). The parties advise of the DA's expert acoustic assessment which assessed the proposal against the Guideline. Council advises me that consent conditions require the taking up of "appropriate measures" in accordance with ss 2.100(3) and 2.120(3) of State Environmental Planning Policy (Transport and Infrastructure) 2021.

1. While there are no other matters requiring positive jurisdictional findings of the Court (McMillan) [57]-[65]), I also note that the parties have drawn to my attention the matters listed for consideration in the relevant planning instruments and indicated how such consideration has been given. I mention here in regard to s 4.15(1)(d) of the EPA Act, that the DA has been notified in accordance with requirements and the parties advise that no objecting submissions were received.

1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

1. The Court notes that the Respondent has approved, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA/2022/1094 to rely upon the following further and amended plans and documents (Amended Development Application), as filed with the Court:

(1) The Applicant is granted leave to file the Amended Development Application with the Court.

(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 1979.

(3) The appeal is upheld.

(4) Development Application No DA/2022/1094, for the Torrens title subdivision of land into 29 x residential lots and the construction and dedication of 3 x public roads including tree removal and stormwater drainage works on land legally described as Lot 23 in DP701849 and known as 176 Wollombi Road, Farley and Lot 529 in DP1275320 and known as 1 Becher Road, Farley NSW 2320, is determined by the grant of development consent subject to the conditions at Annexure A.

Annexure A