Australia, Jan. 17 -- New South Wales Land and Environment Court issued text of the following judgement Dec. 18:

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application DA/2023/315 (DA) by Bayside Council (Council).

2. SK Constructions Pty Ltd (SK Constructions) seeks consent for the demolition of existing structures and construction of a two storey townhouse development comprising seven dwellings including basement parking and strata subdivision at 129 - 131 Russell Avenue, Dolls Point, legally described as Lots 107 and 108 of DP 2237 (site).

Conciliation and agreement between the parties

3. At the parties' request, the Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 5 November 2024. 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.

4. 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. I have considered whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement, and find that there are none. I attend to the relevant statutory matters below, assisted by the advice in the parties' agreed jurisdictional statement received by the Court on 5 November 2024.

Jurisdictional considerations

Integrated development

5. The parties advise that the DA is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal requires approval under s 90(2) of the Water Management Act 2000. Water NSW provided GTAs which have been incorporated into condition 14 (the conditions of consent are provided at Annexure A to this judgment).

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, to be satisfied that the land is suitable for the purpose proposed.

7. Based on the parties' advice and the Joint Expert Planning Report filed on 18 October 2024, I am satisfied that the parties have considered the contamination status of the site and that the site can be made suitable for the proposed development. Specific conditions of consent have been proposed to address these matters, including remediation works (conditions 66 and 100). The requirements of s 4.6 have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. The parties advise that Ch 6 applies because the site is located within the Georges River Catchment.

9. I have considered the potential impacts in Ch 6, including on water quality and quantity, aquatic ecology, flooding, recreation and public access. I accept the advice of the parties and am satisfied that that the requirements of Chapter 6 are satisfied. Bayside Local Environmental Plan 2021

10. The site is zoned R3 - Medium Density pursuant to Bayside Local Environmental Plan 2021 (BLEP). The proposed development, as amended, is permissible with consent within the R3 zone.

11. The parties agree and I accept that the DA is consistent with the aims of BLEP and with the objectives and land use table in respect of the R3 Medium Density zone. I accept the advice of the parties that the DA complies with all development standards under BLEP.

12. Clause 6.1 applies because site is located within a Class 3 Acid Sulfate Soils area. The DA is supported by an Acid Sulfate Soils Assessment prepared by STS Geotechnics which concludes that the works proposed do not require the preparation of an Acid Sulfate Soil Management Plan. The requirements of s 6.1 are met.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193bd0e582558b009d2a36b1)

Disclaimer: Curated by HT Syndication.