Easter Developments Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1671

Easter Developments Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1671

The existing APZ on council land is managed land due to a clear history and ongoing program of maintenance for bushfire mitigation that will continue to serve adjoining properties, rendering it appropriate to rely on for APZ requirements. Flood planning concerns are addressed through site works, specific consent conditions, and requirements for recognition of flood risk (including shelter-in-place planning up to the PMF event). The development satisfies the statutory and planning controls for flood and bushfire, and identified impacts are not sufficient to warrant refusal. Development consent is warranted, subject to final conditions embracing these findings.

Parties
Applicant: Easter Developments Pty Ltd ACN 608 163 122; Respondent: Shoalhaven City Council
Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Development Appeal / Merits Review—judgment and Directions
Outcome
Appeal upheld—development consent to be granted subject to conditions and provision of final agreed conditions by 1 December 2023.
Legal Topics
Subdivision, Flood Prone Land, Bushfire Prone Land, Asset Protection Zones (apz), Reliance on Public Land for Bushfire Protection, Integrated Development, Consent Conditions
Planning and Environment Law Subdivision Flood Prone Land Bushfire Prone Land Asset Protection Zones (apz) Reliance on Public Land for Bushfire Protection Integrated Development Consent Conditions

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Parties

Easter Developments Pty Ltd ACN 608 163 122

Applicant

Shoalhaven City Council

Respondent

Procedural Posture

Development Appeal / Merits Review—judgment and Directions

Legal Issues

  1. 1 Whether council land adjacent to the site is 'managed land' for purposes of bushfire APZ requirements under the Rural Fires Act 1997 and Planning for Bush Fire Protection 2019
  2. 2 Whether the development complies with flood planning provisions under Shoalhaven LEP 2014 and DCP, considering present and projected flood risks
  3. 3 Whether development should be refused for lack of Bush Fire Safety Authority under s 100B of Rural Fires Act

Ratio Decidendi

The existing APZ on council land is managed land due to a clear history and ongoing program of maintenance for bushfire mitigation that will continue to serve adjoining properties, rendering it appropriate to rely on for APZ requirements. Flood planning concerns are addressed through site works, specific consent conditions, and requirements for recognition of flood risk (including shelter-in-place planning up to the PMF event). The development satisfies the statutory and planning controls for flood and bushfire, and identified impacts are not sufficient to warrant refusal. Development consent is warranted, subject to final conditions embracing these findings.

Court Disposition

Appeal upheld—development consent to be granted subject to conditions and provision of final agreed conditions by 1 December 2023.

Orders

  • The parties are to file conditions that reflect the findings at [13] and [113] by 1 December 2023.
  • Liberty to restore is available in the normal manner; modifications to timetable may be submitted through Online Court.