Australia, July 3 -- New South Wales Land and Environment Court issued text of the following judgement on June 3:
1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Central Coast Council, of Development Application DA/1301/2024 which seeks consent for the construction of specialised retail premises, associated civil works on Lot 102 DP 1209157, 11 Bryant Drive, Tuggerah.
2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 April and 6 May 2025. I presided over the conciliation conference.
4. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address the Council's concerns. Subsequently, the amended application that is now before the Court seeks consent for:
1) Construction of a specialised retail premises including two tenancies with an associated back of house area and loading dock;
2) Associated civil works including earthworks and retaining walls;
3) Construction of vehicle access from Lake Road and internal driveways; and
4) Modification of Stage 1 Consent by condition to update various document references and to amend the drafting of condition 1.6.
6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties outlined in a jurisdictional submission, and from this I note the following points.
Jurisdictional matters
7. The development application was made with the written consent of the owner of the land.
8. The application was adequately notified from 20 September to 21 October 2024. No submissions were received during this period. The parties agree that the amended application does not necessitate renotification.
9. The land that forms the subject site is mapped as bushfire prone land. From the parties' submission and the information contained in the Bushfire Threat Report by Tattersall Lander dated July 2024, I accept that the proposed development conforms to the requirements of Planning for Bush Fire Protection 2019 in accordance with the requirements of EPA Act s 4.14.
10. The proposed development includes clearing of 0.42ha of native vegetation and therefore the biodiversity offset scheme (BOS) threshold is triggered under the Biodiversity Conservation Act 2016 (BC Act). Accordingly, under s 7.7 of the BC Act, a Streamlined Biodiversity Development Assessment Report (SBDAR), prepared in accordance with Div 3 of Pt 6 of the BC Act, accompanies the application. Pursuant to s 7.13 of the BC Act, the consent authority is to take into consideration the likely impact of the proposed development on biodiversity values as assessed in the SBDAR. From the SBDAR, the parties' submission, the amended application and the agreed conditions of consent, I accept that the development has been designed to avoid and minimise impacts on biodiversity values, and that adequate biodiversity credits will be retired to offset the residual impact on biodiversity values, meeting the requirements of the BC Act.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19732e87123aa6f4ba4c0a79)
Disclaimer: Curated by HT Syndication.
