Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty Ltd) v Goulburn Mulwaree Council [2020] NSWLEC 1557

Land and Environment Court New South Wales

Medium Neutral Citation: Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty Ltd) v Goulburn Mulwaree Council [2020] NSWLEC 1557 Hearing dates: Conciliation conference on 28 October 2020 Date of orders: 12 November 2020 Decision date: 12 November 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The applicant is granted leave to amend the development application to rely on the amended plans referred to in condition 1 of the conditions of consent at Annexure A. (2) Pursuant to 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 amendment of the application, as agreed or assessed. (3) The appeal is upheld. (4) Development Application No. 335/1819 for alterations and additions to an existing dwelling on land at 14597 Hume Highway, Marulan (Lot 2 DP 1138469) is approved, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Terrace Towers Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Category: Principal judgment Parties: Twynam Investments Pty Ltd (formally known as Twynam Agricultural Group Pty Ltd) (Applicant) Goulburn Mulwaree Council (Respondent) Representation: Counsel: A Kliese (Solicitor) (Applicant) J Dorricott (Solicitor) (Respondent)

Solicitors: Shaw Reynolds Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2019/382223 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 335/1819 for alterations and additions to an existing dwelling (the proposal) at 14597 Hume Highway, Marulan (Lot 2 DP 1138469) (the site) by Goulburn Mulwaree Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 28 October 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. I accept the parties' submission regarding the reasons for the satisfaction of jurisdictional pre-requisites at Annexure B.

Planning framework 1. The site is zoned RU2 Rural Landscape pursuant to Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To protect, manage and restore areas with high conservation, scientific, cultural or aesthetic values. • To protect and enhance the water quality of receiving watercourses and groundwater systems and reduce their degradation. • To preserve environmentally sensitive land, including catchment areas, and prevent development likely to result in environmental harm. • To minimise the potential for conflict between adjoining land uses. 1. On 7 November 2019, the Council published a notice concerning the making of an Interim Heritage Order No 1 over the site. On 17 December 2019, the Council resolved to prepare a planning proposal to amend Sch 5 to LEP 2009 to add "Wingello Park" (the site) as an item of environmental heritage. On 21 January 2020, Council forwarded the planning proposal to the NSW Department of Planning, Industry and Environment (DPIE), with a request for a gateway determination. On 17 February 2020, the DPIE issued a gateway determination for the Planning Proposal, subject to conditions, including that the Council consult with certain public authorities. The Council has consulted with those public authorities in relation to the Planning Proposal. The Planning Proposal was placed on public exhibition on 20 March 2020 until 24 April 2020. Following the receipt of submissions, the Planning Proposal was amended. The amended Planning Proposal was re-exhibited on 10 July 2020 until 7 August 2020. On 8 October 2020, a further submission including a Heritage Impact Assessment prepared by Paul Davies Pty Ltd was provided to Council on behalf of the landowner. A post exhibition report is now being considered for the draft agenda for the Council Meeting of 17 November 2020. 2. Pursuant to s 4.15(1)(a)(ii) of the EPA Act, the consent authority, or the Court exercising the functions of the consent authority, is to consider any proposed instrument that is or has been the subject of public consultation under the EPA Act, if it is of relevance to the development the subject of a development application in determining that development application. I accept that there is a high degree of certainty that the proposed instrument will be made (Terrace Towers Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at 199), because the planning proposal is confined to the heritage listing of the site and there is broad agreement that the site is of heritage significance. 3. The proposal was amended following the agreement of the heritage experts on a scheme for alterations and additions to the existing dwelling that retains the identified heritage values of the dwelling. I accept the parties' agreed submission that the amended proposal is acceptable in terms of its impacts on the identified heritage values of the existing dwelling.

Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the development application to rely on the amended plans referred to in condition 1 of the conditions of consent at Annexure A. 2. Pursuant to 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 amendment of the application, as agreed or assessed. 3. The appeal is upheld. 4. Development Application No. 335/1819 for alterations and additions to an existing dwelling on land at 14597 Hume Highway, Marulan (Lot 2 DP 1138469) is approved, subject to the conditions of consent at Annexure A.

___________

Susan O'Neill

Commissioner of the Court Annexure A (327328, pdf) Annexure B (137213, pdf)

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2020