Judgment

Background

1. These proceedings arise following the Independent Planning Commission of NSW (Commission’s) refusal of Development Application No. SSD 3846 for a staged mixed-use development on part Lots 5 and 6 in DP 1065111 to the west of the existing township of Culburra Beach (State Significant Development (SSD)).

The application is State significant development

2. At the time of lodgement, the application was classified as a concept proposal application under Pt 3A of the Environmental Planning and Assessment Act 1979 (EPA Act). In 2015 with the repeal of that legislation, the application was transitioned to SSD under Pt 4 Div 4.7 of the EPA Act in 2015.

3. The Commission is the relevant consent authority under s 4.5(a) of the EPA Act and cl 8A of the State Environmental Planning Policy (State and Regional Development) 2011 (SEPP SRD) because:

1. the proposal involves subdivision for residential purposes into more than 100 lots, and

2. more than 25 public submissions were lodged objecting to the proposal.

4. As the application was submitted prior to 1 March 2018, cl 8A of SEPP SRD applies because the clause extends to development applications that were made before the clause commenced on 1 March 2018 that have not been determined.

5. The agreed Statement of Facts and Contentions records the relevant background and statutory framework.

6. The proceedings were referred to an onsite s34 conciliation conference on 10 May 2021 and I was the presiding commissioner. At the commencement of the conference, the Court took a view of the site with the parties and their experts before retiring to the local community centre to receive oral submissions from a number of supporters and objectors of the application. The parties then conferred, and it was agreed that the applicant be given opportunity to undertake further investigations to address the contentions. Following those further investigations, the applicant sought and was granted leave to formally amend its application which was subsequently notified.

7. On 29 October 2021, the parties reached an agreement for the conditional approval of the project.

8. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), the Court must dispose of the proceedings in accordance with the parties’ decision if the decision is one that the Court could have made in the proper exercise of its functions.

Jurisdictional prerequisites

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application.

1. Shoalhaven Local Environmental Plan 1985 (SLEP 1985)

The planning evidence is that the amended proposal is considered to be consistent with the aims and objectives of SLEP 1985 and the objectives of the zone within which the development is proposed (cl 9(3)).

2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

The site is not listed on Council’s land contamination register and the amended proposal is otherwise consistent with SEPP 55 (cl 7(1)).

3. State Environmental Planning Policy No 14—Coastal Wetlands (SEPP 14)

SEPP 14 does not apply to the amended proposal as the site is not within “land outlined by the outer edge of the heavy black line on the map” pursuant to cl 4(1). However, given the proximity of the proposed development to wetlands which are mapped under SEPP 14, consideration has been given to cl 7(2) of SEPP 14. The information accompanying the amended proposal is sufficient to consider the surface and groundwater characteristics of the site and surrounding areas.

4. State Environmental Planning Policy No 62—Sustainable Aquaculture (SEPP 62)

Consideration of the NSW Oyster Industry Sustainable Aquaculture Strategy (OISAS) as required by cl 15D of SEPP 62:

1. consideration of the potential impact on the oyster aquaculture area has been given,

2. the amended proposal has been designed to meet the water quality requirements of OISAS, and

3. the amended proposal demonstrates it will not reduce the suitability of the oyster aquaculture area for its intended purpose.

Conclusion

10. The parties submit on the evidence before me that the relevant jurisdictional prerequisites to the proper exercise of power to approve the project have been met. After careful consideration of the evidence including the amended plans and supporting expert reports, I am also satisfied of that fact.

11. As the parties’ decision is lawful, I am required to dispose of the proceedings in accordance with that decision pursuant to s 34(3) of the LEC Act.

12. The Court notes that the Department of Planning, Industry and Environment, on behalf of the Independent Planning Commission of New South Wales, has uploaded the amended development application on the NSW planning portal on 15 January 2021.

13. Accordingly, the Court orders that:

1. The appeal is upheld.

2. Development Application SSD 3846, as amended, which is a concept proposal for a staged, mixed-use development is approved, subject to the conditions annexed and marked Annexure “A”.

3. No order as to costs.

 

……………………..

S Dixon

Senior Commissioner of the Court

 

Annexure A  (959469, pdf)

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Decision last updated: 01 December 2021