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R and G Creations Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1030 (27 January 2023)

New South Wales Land and Environment Court

R and G Creations Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1030 (27 January 2023)

Last Updated: 27 January 2023

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing motel and the construction of a residential flat building consisting of 35 apartments, associated parking, landscaping and stormwater works at 8-12 Princes Highway, Mollymook NSW 2539. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
2. The Court arranged a number of conciliation conferences under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which were subsequently terminated. The Court arranged a further conciliation conference between the parties, which was held on 24 January 2023. I presided over the conciliation conference.
3. At the conciliation conference, 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. The agreement is recorded in a signed agreement filed on 21 December 2022, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court.
4. The amendments to the development application include the provision of detail concerning the levels of the site, internal configuration changes to address issues concerning waste management, and changes to the north eastern edge of the building so as to improve view corridors from the public road to the water and to reduce the impact on neighbouring properties.
5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Statement of Reasons for upholding the appeal, which sets out the history of the appeal and each of the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Statement of Reasons, 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.
6. As the presiding Commissioner, I am satisfied that 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 as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
   • Development for the purpose of a residential flat building is permissible in the R1 – General Residential zone in which the site is located, pursuant to the Shoalhaven Local Environmental Plan 2014 (SLEP).
   • The proposed development complies with the 11m height of buildings development standard under cl 4.3 of the SLEP.
   • The development application includes earthworks for the provision of the basement. Based on the Geotechnical Investigation Study by STS Geotechnics Pty Ltd dated November 2019, I have considered the matters set out in cl 7.2(3) of the SLEP.
   • The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.
   • The amended development application is accompanied by a statement of a qualified designer that verifies the design of the development, as required by cl 50(1A) and (1AB) of the EPA Regulation 2000.
   • As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. Based on the content of the SEPP 65 Verification Statement dated 26 September 2022, I have considered the Apartment Design Guide and the design quality of the development when evaluated in accordance with the design quality principles, as required by cl 28(2) of the SEPP 65.
   • Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of a motel, it is unlikely to be contaminated.
   • The site has frontage to the Princes Highway, which is a classified road, and s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies. It is not practicable to provide vehicular access to the site from a road other than the classified road. However, I am satisfied, as a result of the imposition of conditions of consent requiring compliance with Transport for NSW (TNSW) requirements concerning turn treatments, and a waste management plan that involves the collection of bins from the kerb side parking lane, that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of s 2.119(2)(c) and based on the comments on objective 4J-2 in the SEPP 65 Verification Statement, the proposed development includes measures to ameliorate potential traffic noise arising from the adjacent road.
   • The development application was publicly exhibited between 9 and 23 December 2020 and 17 and 31 March 2021. A total of 130 submissions were received during these periods, 7 of which supported the proposed development. I have considered the issues raised in those submissions, which are summarised in the Statement of Reasons.
   • I accept the submissions made in the Statement of Reasons that there is power to impose the conditions of consent in Annexure B.
7. Having reached the state of satisfaction that the decision 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)).
8. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
9. The concurrence of TNSW is also required pursuant to s 138 of the Roads Act 1993. TNSW has provided recommended conditions which have been incorporated in Annexure B.
10. The Court notes that Shoalhaven City Council, as the relevant consent authority, has agreed, pursuant to cl 55(1) of the EPA Regulation 2000, to the applicant amending development application DA20/1466 in accordance with the amended plans and documents listed in Annexure A.
11. The Court orders that:

(1) The Applicant is granted leave to amend Development Application Number DA20/1466 to rely on the amended plans and documents identified in Annexure A.

(2) In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments referred to in order (1) above, as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application Number DA20/1466 for the demolition of existing motel and construction of a 28 unit Residential Flat Building with swimming pool, associated parking, landscaping and stormwater works on Lot 1 DP 518702, Lot 2 DP 518702 and Lot 3 DP 523625 known as 8-12 Princes Highway, Mollymook NSW 2539, is approved subject to the conditions set out at Annexure B.

J Gray

Commissioner of the Court

Annexure A

Annexure B

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