Winifred West Schools Ltd v Wingecarribee Shire Council [2023] NSWLEC 1799

Winifred West Schools Ltd v Wingecarribee Shire Council [2023] NSWLEC 1799

The Court was on balance inclined to grant consent because the proposal was for development associated with an existing school, the site was potential but not core koala habitat, NorBE requirements could be satisfied by the revised stormwater design, bushfire and flood risks could be managed by conditions including appropriate APZs and evacuation procedures, and biodiversity impacts could be addressed through enforceable management plans and amended conditions. Final orders were deferred until the parties amended the conditions to reflect the judgment.

Jurisdiction
Australia
Judgment Date
22 December 2023
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No DA 20/07747 / Principal Judgment; Court Inclined to Grant Consent Subject to Appropriate Conditions and Directed Parties to File Amended Conditions Before Final Orders
Outcome
Directions made; final orders deferred pending amended conditions of consent. The Court stated it was on balance inclined to grant consent subject to appropriate conditions.
Legal Topics
['development Application for Student Accommodation, Multi Purpose Hall and Associated Works' 'deemed Refusal Appeal' 'koala Habitat Protection' 'biodiversity Development Assessment Report' 'neutral or Beneficial Effect on Water Quality' 'asset Protection Zones and Bush Fire Safety' 'flood Emergency Response Plan' 'platypus, Wombat and Native Fauna Impacts' 'vegetation Management and Land for Wildlife']
['environmental Planning and Assessment' 'biodiversity Conservation' 'bushfire Planning' 'water Catchment Protection' 'administrative and Merits Review'] ['development Application for Student Accommodation, Multi Purpose Hall and Associated Works' 'deemed Refusal Appeal' 'koala Habitat Protection' 'biodiversity Development Assessment Report' 'neutral or Beneficial Effect on Water Quality' 'asset Protection Zones and Bush Fire Safety' 'flood Emergency Response Plan' 'platypus, Wombat and Native Fauna Impacts' 'vegetation Management and Land for Wildlife']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No DA 20/07747 / Principal Judgment; Court Inclined to Grant Consent Subject to Appropriate Conditions and Directed Parties to File Amended Conditions Before Final Orders

Legal Issues

  1. 1 ['Whether development consent should be granted for construction of student accommodation buildings, a multi-purpose hall and associated works at Frensham School.' 'Whether the subject land is potential koala habitat or core koala habitat under State Environmental Planning Policy (Koala Habitat Protection) 2020.' 'Whether the proposal adequately addresses biodiversity impacts, including vegetation removal, wombats, platypus, rakali and koalas.' 'Whether the proposed stormwater and drainage design satisfies the neutral or beneficial effect requirement for water quality in the Sydney Drinking Water Catchment.' 'Whether bushfire risks, Asset Protection Zones, access and evacuation arrangements are acceptable.' 'Whether flood and bushfire evacuation procedures provide an adequate management response.' 'Whether conditions of consent can sufficiently manage identified impacts.']

Ratio Decidendi

The Court was on balance inclined to grant consent because the proposal was for development associated with an existing school, the site was potential but not core koala habitat, NorBE requirements could be satisfied by the revised stormwater design, bushfire and flood risks could be managed by conditions including appropriate APZs and evacuation procedures, and biodiversity impacts could be addressed through enforceable management plans and amended conditions. Final orders were deferred until the parties amended the conditions to reflect the judgment.

Court Disposition

Directions made; final orders deferred pending amended conditions of consent. The Court stated it was on balance inclined to grant consent subject to appropriate conditions.

Orders

  • ['By 22 January 2024, the parties are to amend the conditions of consent to reflect the findings of this judgment, and file the amended conditions of consent.' 'By 22 January 2024, the parties are to forward a Word copy of the amended conditions of consent to the Court and subject to my satisfaction that the...