Australex Group Pty Ltd v Fairfield City Council

Case •

[2021] NSWLEC 1772

•

10 December 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Australex Group Pty Ltd v Fairfield City Council [2021] NSWLEC 1772
Hearing dates: 24-25 March 2021; 10 December 2021
Date of orders: 10 December 2021
Decision date: 10 December 2021
Jurisdiction:Class 1
Before: Dixon SC
Decision:

See [91] for final orders.

Catchwords:

DEVELOPMENT APPLICATION – proposal seeking consent for Torrens Title subdivision of one lot into two lots and the construction of a dwelling house with a swimming pool, engineering and landscaping works – subject site adjoins State listed heritage site Horsley Complex

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Fairfield Local Environmental Plan 2013, cll 2.3, 4.1, 5.10, 6.1, 6.2, 6.3, 6.9

Land and Environment Court Act 1979, ss 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Western Sydney Aerotropolis) 2020, cll 19, 53

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Cases Cited:

Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290; [2001] NSWLEC 279

HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135

Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

Texts Cited:

Fairfield City Wide Development Control Plan 2013

Category:Principal judgment
Parties: Australex Group Pty Ltd (Applicant)
Fairfield City Council (Respondent)
Representation:

Counsel:
J Farrell (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2020/135241
Publication restriction: Nil

Judgment

Introduction

  1. These proceedings are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Fairfield City Council of Development Application No. 515.1/2019 (DA) for a Torrens Title subdivision of one into two lots, and the construction of a dwelling house with a swimming pool, engineering and landscaping works (proposed development) on Lot 8 DP 240509 located at 60-64 Jamieson Close, Horsley Park (site).

The site and its context

  1. The site is located on the northern side of Jamieson Close at Horsley Park. It is irregular in shape and has a total area of 2.02 hectares. The topography maintains a downward slope from the western boundary of the site to the eastern boundary, a fall of approximately 12.9 metres.

  2. The surrounding area is characterised by large allotments within a semi-rural context. There is an existing two-storey dwelling at the frontage of the site and the proposal is to subdivide the block into two lots to accommodate a new dwelling at the rear of the site. Relevantly, the rear boundary adjoins the entrance driveway to the Horsley Complex.

  3. The Horsley Complex (homestead, driveway and gardens) is listed as an item of environmental heritage on the State Heritage Register and pursuant to Sch 5 of the Fairfield Local Environmental Plan 2013 (FLEP 2013). Although not visible from Jamieson Close, the heritage homestead is positioned at the height of the topography and the impact of the new development on the visually prominent entrance driveway to the Horsley Complex, lined by mature Bunya Pine trees, was a particular focus in the proceedings.

The hearing

  1. The appeal was subject to conciliation on 24 March 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). It commenced onsite with a view of the property and the surrounding area including the State heritage listed Horsley Complex and its curtilage. Despite discussion aimed at resolving the issues the parties were unable to reach agreement, so the conciliation process was terminated, and the hearing proceeded in Court via Microsoft Teams later that day. After hearing the parties’ opening addresses and the partial cross-examination of heritage experts, the Council agreed to allow the applicant an opportunity to make further amendments to the DA. The preparation these amendments and the supporting expert reports was then delayed by the COVID lockdown. The next allocated hearing date in August needed to be vacated and as it happened the matter was not able to be finalised until 10 December 2021.

Contentions

  1. The Council’s Statement of Facts and Contentions (SOFAC) dated June 2020 raised 11 contentions with the DA. The contentions concerned the lot size, the bulk and scale of the dwelling, stormwater disposal, heritage impacts, landscaping, sewerage management, lack of information, precedent and the public interest. Some of these matters were satisfactorily addressed by the applicant’s November 2021 amendments to the application (Ex H) but the amendments also raised some additional concerns:

  • Whether the development was prohibited under draft State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 - which had the effect of prohibiting noise sensitive development.

  • Whether a cl 4.6 request was required to accommodate the right of carriageway in the lot size calculations.

  • The addition of further particulars to contention 2 relating to earthworks, cut and fill.

  • The addition of further particulars to contention 3 relating to heritage issues.

  • The addition of further particulars to contention 6 relating to landscaping.

  1. These contentions were addressed in a series of further joint expert reports and a redesign of the development that reduced the bulk and scale of the dwelling; and amended the lot layout so that each lot now complied with the minimum lot size. Content with these amendments to the design the Council then came to an agreement with the applicant in respect to the conditions and provided the Court with expert evidence confirming the resolution of the town planning and heritage issues. The further evidence included:

  1. a joint expert report between Mr Gescheit, town planner for the applicant, and Ms Cullen, town planner for the Council filed 3 December 2021 (Addendum to the Planning JER); and

  2. a supplementary report between Mr Phillips, heritage expert for the applicant and Ms Holtham, heritage expert for the Council filed 8 December 2021 (Addendum to the Heritage JER).

The proposal (as finally amended)

  1. At the resumed hearing on 10 December 2021 the Council informed me, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (Regulations 2000), that it consented to the amended application and had uploaded it onto the NSW planning portal. The amended application included:

  • Architectural Plans prepared by Architecture Urban Design Planning dated 26 November 2021;

  • Landscape Plan Sheets 1-5 prepared by Zenith Landscape design, Reference 20-4271L01, dated 03.09.2021, revision I;

  • Stormwater Plan prepared by Telford Civil Design, Project No 202139, Sheets 100 to 105, Revision ‘D’, dated 07 October 2021;

  • Plan of proposed Subdivision prepared by Victor John Mansell Reference No. 204972-11 dated 13 July 2021;

  • Aircraft Noise Assessment (reference 20211_201012_Aircraft Noise Assessment_BW_R2.docx) prepared by White Noise Acoustics dated 29 July 2021; and

  • Amended Statement of Environmental Effects prepared by Navon Planning dated December 2021.

  1. A copy of the amended DA was filed with the Court in the applicant’s Supplementary Bundle dated 9 December 2021.

  2. As the Addendum to the Planning JER indicates at section 2.1, the Further Amended DA has involved:

  1. Relocation of the dwelling towards Jamieson Close and away from the ‘Areas of Significance’, identified in the Horsley Homestead Rural Landscape Study prepared by Geoffrey Britton and Colleen Morris, dated July 2004

  2. Revised subdivision plan to provide Lot 1 with 10,000sqm and Lot 2 with 10,272sqm;

  3. A single storey dwelling with combined living areas including a double garage, pool and BBQ area;

  4. Revised driveway in front of the dwelling to accommodate underground rainwater and OSD tanks; and

  5. Updates to landscaping, civil plans and other supporting reports.

Consideration

  1. After a consideration of the Further Amended DA, as assessed against the remaining contentions, the public submissions and further evidence and the relevant planning controls, I am satisfied that the development should be approved on a conditional basis. My reasoning follows.

Resolution of the contentions

Contention B1 – Minimum lot size

  1. Contention B1 is that the DA must be refused because the proposed development does not comply with the minimum lot size requirement for rural subdivision pursuant to cl 4.1(3) of the FLEP 2013.

Controls

  1. Clause 4.1(3) of the FLEP 2013 provides that:

The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

  1. Pursuant to the Lot Size Map referred to in cl 4.1(3), the minimum permissible subdivision lot size for development located on the site is 10,000m2.

Evidence

  1. The lot size is 2.02 hectares.

  2. The applicant’s Supplementary Bundle has at Tab 4 a plan of subdivision demonstrating that both lots comply with the minimum subdivision lot size, being 10,000m2 and 10,272m2.

  3. The Addendum to the Planning JER deals with the contention at pars 3.1-3.7. The Council’s expert, Ms Cullen says:

“given the broader issue of the prevailing heritage matters for this site, the proposed subdivision layout is considered a reasonable response in this context and is acceptable. A condition of consent that requires that any fencing along the proposed new boundary line shall be a 1.2m high rural style open post and wire fence, will lessen the emphasis of the boundary line in this location and remain sympathetic to the rural character of the area”.

Finding

  1. The Court finds on the evidence referred to above that this contention has been resolved.

Contention B2: Earthworks

  1. Contention B2 is that the DA should be refused because the proposed earthworks are excessive and will have a detrimental impact on the State Heritage listed Horsley Complex. Further the DA proposes excessive fill which does not comply with clause 4A.7.3.5 of the Fairfield City Wide Development Control Plan 2013 (FDCP 2013).

Controls

  1. Clause 6.2 of the FLEP 2013 provides that:

6.2   Earthworks

(1)  The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2)  Development consent is required for earthworks unless—

(a)  the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b)  the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3)  Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a)  the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development,

(b)  the effect of the development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Note—

The National Parks and Wildlife Act 1974, particularly section 86, deals with harming Aboriginal objects.

  1. Under FDCP 2013, clause 4A.7.3.5 states the following in relation to cut and fill in rural zones:

“4A.7.3.5 Cut and Fill

a) A maximum fill of 1 metre will be permitted where the filling is contained within the building envelope by a drop edge beam

b) Filling of the ground outside the building envelope is not permitted.”

Evidence

  1. The updated architectural plans are provided at Tab 1 of the applicant’s Supplementary Bundle. The plans indicate that the proposed development has been relocated in a southerly direction to a flatter part of the site, away from the rear, where the need for cut and fill has been reduced.

  2. To assist the Court, the applicant’s planner has provided a “Clause 6.2 earthworks statement” in the applicant’s Supplementary Bundle dealing with the matters contained in cl 6.2 prepared by Eli Gescheit of Navon Solutions dated 22 March 2021.

  3. This contention is otherwise dealt with at pars 3.9-3.13 of the Addendum to the Planning JER. Both experts agree that the relevant controls are complied with.

Finding

  1. The Court finds on the evidence referred to above that this contention has been resolved.

Contentions B3-B5 (Heritage)

  1. The three heritage contentions in the proceedings are as follows:

  1. Contention B3: The DA should be refused because the proposal will have an adverse impact on the heritage significance of the State Heritage listed Horsley Complex and associated settings and views, and is therefore inconsistent with the objects of the Heritage Act 1977 and cl 5.10 of the FLEP 2013.

  2. Contention B4: The DA should be refused because it does not propose an appropriate design for a new building within the vicinity of a heritage item and is therefore inconsistent with clause 2.9 of Appendix G of FDCP 2013.

  3. Contention B5: The DA should be refused because the proposal contradicts the recommended management guidelines of the State Heritage Register in relation to the Horsley Complex.

Controls

  1. The controls relevant to these contentions include:

  1. The objects of the Heritage Act 1977;

  2. Clause 5.10 of the FLEP 2013;

  3. Schedule 5 of the FLEP 2013 which lists the complex as a heritage item;

  4. Clause 2.9 of Appendix G of FDCP 2013 which deals with new buildings on the site of a heritage item or in its vicinity; and

  5. The recommended management guidelines of the State Heritage Register in relation to the Horsley Complex (Exhibit 6).

Evidence

  1. The original joint report of the heritage experts dated 16 December 2021 contained at Appendix 4 a document entitled “Horsley Homestead Rural Landscape Study” prepared by Britton and Morris dated 2004 (Britton Morris Study). The Britton Morris Study contained Figure 11 entitled “Development Opportunities” and for convenience is set out below.

  1. The approximate location of the site is shown below, demonstrating that by reference to the legend the site is a mixture of (in order)

  • yellow “exceptional significance – no development”,

  • blue “culturally sensitive zone – no development”,

  • orange “within culturally sensitive zone – limited development only” and

  • grey “development areas – along roads or lower contours - scale & form control.”

  1. In summary, the highest levels of significance are shaded yellow and blue, and the area deemed most suitable for development is within the vicinity of Jamieson Close.

  2. Turning to the applicant’s Supplementary Bundle, a revised site plan is provided at plan SK55 and for convenience is extrapolated below.

  1. Plan SK55 has extrapolated the areas of exceptional significance (yellow in Figure 11, pink in the plan) which the proposed development now avoids. Following rigorous refinement between the architect and heritage experts, the development is now located in an area largely within the grey shading which is identified as grey - “development areas – along roads or lower contours - scale & form control.”

  2. The parties’ heritage experts conferred to prepare the Addendum to the Heritage JER. It is prepared by reference to the plans in the applicant’s Supplementary Bundle. It concludes at section 3.0: “With regard to Contentions 3, 4 and 5, relating to Heritage, the experts agree that the proposed changes outlined in the drawings above resolve all matters pertaining to those Contentions”.

Finding

  1. The Court finds on the evidence referred to above that Contentions 3, 4 and 5 are resolved.

Contention B6: Landscaping

  1. Contention B6 is that the DA should be refused because insufficient and inconsistent landscaping details have been provided.

Evidence

  1. An updated landscaping plan has been provided in the applicant’s Supplementary Bundle at Tab 2.

  2. The previous contention is no longer relevant in light of the relocation of the development footprint.

  3. The Council does not press the contention subject to conditions of consent which include condition 56

Finding

  1. The Court finds on the evidence referred to above that this contention has been resolved.

Contention B7: Inadequate information

  1. Contention B7 is that the DA should be refused because inadequate information has been provided to enable a proper assessment of the development.

Evidence

  1. A Revised Statement of Environmental Effects (Revised SEE) is provided in the applicant’s Supplementary Bundle at Tab 8.

  2. This contention is dealt with at par 3.14 of the Addendum to the Planning JER. It is agreed in the JER that the contention is satisfied.

Finding

  1. The Court finds on the evidence referred to above that this contention has been resolved.

Contention B8 & B9: Precedent and the public interest

  1. The parties agreed that in light of the resolution of the outstanding contentions, these contentions are resolved.

Jurisdictional prerequisites

  1. As the Court emphasised in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, in order to grant development consent to the amended development application I must be satisfied about all relevant jurisdictional matters. In that regard I accept the following evidence.

Landowners’ consent

  1. For the purposes of cl 49 of the Regulations 2000, the DA is made with the consent of the landowners (Class 1 application, DA form, Part B page 1).

Notification

  1. The DA was originally notified as set out at par 21 of the ASOFAC and received one submission. The submission is at Tab 5 of the Council’s Bundle (Ex 1 Tab 5).

  2. As set out at Tab 10 of the Council’s Bundle, the DA was renotified on 11 November 2020.

  3. The Further Amended DA was re-notified from 28 September 2021 for a period of 14 days. A submission was received objecting to the Further Amended DA. The Council agrees that the Further Amended DA should be approved based on the expert evidence subject to conditions and is satisfied that the objectors’ concerns have been taken into consideration as required by the EPA Act.

Clause 55 of the Regulations 2000

  1. The Council has consented to the Further Amended DA and the documents have been lodged on the NSW planning portal (Applicant’s Supplementary Bundle at Tab 9).

Permissibility

  1. The site is zoned RU4 Primary Production Small Lots under the FLEP 2013.

  2. Development for the purposes of a subdivision and a dwelling house is a permitted use in the zone.

Zone objectives

  1. The objectives of the RU4 zone are as follows:

•  To enable sustainable primary industry and other compatible land uses.

•  To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To ensure that development is sympathetic to the rural environment and minimises risks from natural and man-made hazards.

  1. The Revised Statement of Environmental Effects deals with these objectives at p 7. Pursuant to cl 2.3(2), after a consideration of the zone objectives I am satisfied on the evidence that consent is appropriate.

Development standards

  1. Clause 4.2 ‘Rural Subdivision’ does not apply because the subdivision is not for the purpose of primary production.

  2. The proposed development does not breach the development standards under the FLEP 2013.

Acid sulfate soils

  1. In relation to cl 6.1 ‘Acid Sulfate soils’, the proposed development is not located on land shown on the Acid Sulfate Soils Map for the purpose of cl 6.1 of the FLEP 2013. Therefore I am satisfied that the matters raised by cl 6.1(3) have been considered as part of the assessment of the DA.

Flooding

  1. In relation to the now repealed cl 6.3 and cl 5.21 of the FLEP 2013 relating to flood planning, the land is not within the flood planning area. Therefore, I accept that these provisions do not apply.

Essential services

  1. In relation to cl 6.9 ‘Essential Services’ of the FLEP 2013, I am satisfied that the matters raised by cl 6.9 have been considered as part of the assessment of the Further Amended DA (Revised SEE, page 10).

State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

  1. In relation to cl 7(1) of SEPP 55, I am satisfied that the proposed development does not give rise to matters relating to contamination of land (Revised SEE, page 10) and that cl 7 is satisfied.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

  1. I am satisfied that a current BASIX certificate has been provided at Tab 7 of the applicant’s Supplementary Bundle that complies with all the relevant requirements in the SEPP.

State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 (SEPP WSA)

  1. The final environmental planning instrument of relevance is the SEPP WSA and this requires some detailed analysis.

  2. The SEPP WSA came into force on 1 October 2020.

  3. Clause 19 of the instrument applies to “noise sensitive development”. “Noise sensitive development” includes development for the purposes of residential accommodation (cl 19(6)). A dwelling house is “residential accommodation”.

  4. A prohibition is introduced in cl 19(2). It provides at (2) that development consent “must not be granted to noise sensitive development if the development is to be located on land that is in an ANEF or ANEC contour of 20 or greater.”

  5. The site is located on land that is in an ANEF or ANEC contour of 20 or greater. The relevant map is provided below.

  1. The site is identified as being in the yellow “ANEC between 20 and 25” by the red cross.

  1. There is a qualification to the prohibition, in cl 19(4). It provides:

(4) Despite subclause (2), development consent may be granted to development for the purposes of dwelling houses on land that is in an ANEF or ANEC contour of 20 or greater if—

(a) immediately before the commencement of this Policy—

(i) there were no dwellings on the land, and

(ii) development for the purposes of dwelling houses was permitted on the land, and

(b) the consent authority is satisfied that the development will meet the indoor design sound levels.

  1. The two requirements in subcl (4)(a) and (4)(b) are cumulative.

  2. In relation to the second requirement at cl 19(4)(b), an Aircraft Noise Impact Assessment Report was prepared by White Noise Acoustics dated 29 July 2021 (White Noise Report) which concludes that:

  1. as the Western Sydney Airport is currently in design, flight paths are not in operation and actual ANEF contours cannot be assessed. As such the future contours for the Western Sydney Airport include ANEC prediction contours which are detailed in this report (page 6);

  2. based on the information available using the Australian Government, Department of Infrastructure, Transport, Regional Development and Communications Western Sydney Airport Noise modelling tool, the location of the proposed development from the future airport can be assessed (page 6);

  3. based on the information available using the Australian Government, Department of Infrastructure, Transport, Regional Development and Communications Western Sydney Airport Noise modelling tool and using the modelled ANEC contours, potential aircraft noise can be assessed at the location of the proposed development (page 6);

  4. the assessment of potential aircraft noise exposure at a given site is based on the Australian Government, Department of Infrastructure, Transport, Regional Development and Communications Western Sydney Airport Noise modelling tool. This modelling is detailed, with the location of the 60-64 Jamieson Close Horsley Park site, in the figure below (page 6);

  1. based on the location of the site it is outside of the ANEC 20 contour and the site is acceptable for residential use (page 6);

  2. at part 3.1 of the report commencing page 7, internal noise level criteria are established. At part 3.2 of the report, aircraft movement is described;

  3. at part 4 of the report there is an environmental noise intrusion assessment which ultimately concludes at page 12 that:

“providing the recommended constructions detailed in this report are included in the construction of the project the required internal noise levels will be achieved from future aircraft fly overs resulting from the operation of the future Western Sydney Airport.”

  1. Based on the above, I am satisfied that the development will meet the indoor design sound levels for the purposes of cl 19(4)(b).

  2. In relation to the first requirement in cl 19(4)(a), I accept that this does not apply to the Further Amended DA because as at the date of the commencement of the Policy, there was already one dwelling located on the land. Had the permissible subdivision already taken place, the qualification would have operated differently. However, the qualification in cl 19(4) does not apply and there is a prohibition on the development pursuant to cl 19(2) which came into force on 1 October 2020. It is therefore necessary to turn to the savings and transitional provisions. Pursuant to cl 53(1) of the SEPP WSA, the savings provision provides:

A development application for development on land to which this Policy applies that was lodged and not finally determined before the commencement of this Policy is to be determined as if this Policy had not commenced.

  1. A savings and transitional provision in these terms has been considered in a number of cases including the decision of the Court of Appeal in Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 and the decision of Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290; [2001] NSWLEC 279 (Blackmore Design Group). The relevant principles are as follows.

  2. Given that the SEPP WSA came into force, it would be regarded as certain and imminent and would be given significant weight. However, that is not the end of the enquiry: Blackmore Design Group at [37] where the Court approved the DA despite the prohibition on the basis of consistency with the objectives of the instrument.

  3. It is therefore necessary to address the issue of consistency with the aims and objectives of the SEPP. As Lloyd J stated in Blackmore Design Group at [30], various expressions have been used to define the concept of ‘consistency’, but the approach which has been favoured in the Court of Appeal is whether the proposal is in harmony.

  4. The objectives of the SEPP WSA are set out in cl 3 and are addressed in the table below:

Objective

The evidence in response

A

to facilitate development in the Western Sydney Aerotropolis in accordance with the objectives and principles of the Western Sydney Aerotropolis Plan

Neutral – Site is not located in the Western Sydney Aerotropolis and the plan does not limit residential development in this location

B

to promote sustainable, orderly and transformational development in the Western Sydney Aerotropolis

Neutral – Site is not located in the Western Sydney Aerotropolis

C

to ensure development is compatible with the long-term growth and development of the Western Sydney Airport (including in relation to the operation of the Airport 24 hours a day) and other critical transport infrastructure

Consistent – the White Noise Report finds that site is located in an area likely to be outside the eventual ANEF or ANEC contour of 20 or greater. It also finds that “providing the recommended constructions detailed in this report are included in the construction of the project the required internal noise levels will be achieved from future aircraft fly overs resulting from the operation of the future Western Sydney Airport.”

D

to promote employment and world-class innovation and provide for residential development in suitable locations

Consistent for reasons outlined in response to (c)

E

to recognise the physical and cultural connection of the local Aboriginal community to the land and to incorporate local Aboriginal knowledge, culture and tradition into development,

Neutral – development does not raise issues relating to aboriginal cultural heritage

F

to preserve land for future infrastructure development

Neutral – land is well outside of airport footprint and has not been identified for a different planning purpose in the SEPP

G

to protect, maintain and enhance, and to minimise the impact of development on, trees and vegetation, soil quality and the health of waterways and to contribute to the conservation of biodiversity

Consistent – developments impacts are now minimised and has no significant impact on vegetation, waterways or biodiversity

H

to recognise and protect the ecological and cultural value of Wianamatta–South Creek

Neutral

  1. For reasons identified above, I accept that the proposed development is not inconsistent with the objects of the SEPP WSA and is thereby in harmony with the aims and objectives of the planning instrument.

Conditions of consent

  1. The applicant submits that the agreed conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles. After review I accept the proposed conditions.

Conclusion

  1. As reflected in the amended layout, scale and location of the proposed development, the heritage concerns raised by the Council and the adjoining owner of the heritage item have taken primacy in the amended application. The location of the dwelling house has been moved towards Jamieson Close away from those areas identified as having exceptional significance. The dwelling house has also been reduced in its scale and all of the Council’s contentions have been satisfactorily resolved.

  2. Accordingly, I find that the appeal should be upheld; and the development application as amended be granted consent subject to the imposition of the agreed conditions of consent.

  3. The Court notes:

  1. That Fairfield City Council, as the relevant consent authority, has, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 consented to the following amendments to Development Application No. 515.1/2019:

  1. Architecture Plans prepared by Architecture Urban Design Planning, sheet numbers

  1. SK55 Rev D dated 26/11/21

  2. SK60 Rev E dated 26/11/21

  3. SK61 Rev E dated 26/11/21

  4. SK62 Rev C dated 26/11/21

  5. SK63 Rev A dated 26/11/21

  6. SK65 Rev A dated 26/11/21

  7. SK70 Rev E dated 2/12/21

  8. SK71 Rev E dated 2/12/21

  9. SK 80 Rev A dated 26/11/21

  10. SK 81 Rev A dated 26/11/21

  11. SK 82 Rev A dated 26/11/21

  12. SK 83 Rev A dated 26/11/21

  13. SK 84 Rev A dated 26/11/21

  14. SK 85 Rev A dated 26/11/21

  15. SK50 Rev J, dated 6/9/21;

  1. Finishes and colour schedule prepared by Architecture Urban Design Planning Issue J dated 6 September 2021.

  2. Landscape Plan Sheets 1-5 prepared by Zenith Landscape design, Reference 20-4271L01, dated 03.09.2021, revision I;

  3. Stormwater Plan prepared by Telford Civil Design, Project No 202139, Sheets 100 to 105, Revision ‘D’, dated 07 October 2021;

  4. Plan of proposed Subdivision prepared by Victor John Mansell Reference No. 204972-11 dated 13 July 2021.

  5. Aircraft Noise Assessment (reference 20211_201012_Aircraft Noise Assessment_BW_R2.docx) prepared by White Noise Acoustics dated 29 July 2021.

  6. Soil and Site Assessment for On-site Wastewater Disposal prepared by Harris Environmental Consulting version 1.4 dated 30 July 2021.

  7. NatHERS stamped plans dated 30 July 2021.

  8. Thermal comfort and BASIX certificate dated 30 July 2021.

  9. Amended Statement of Environmental Effects prepared by Navon Planning dated December 2021.

  1. The applicant uploaded the amended application on the NSW planning portal by 9 December 2021.

  2. The amended application has been filed with the Court.

  3. The applicant is to pay the respondent’s costs thrown away in the sum of $20,000 within 28 days of the orders being made by the Court.

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development consent is granted to Development Application No. 515.1/2019 for the Torrens Title subdivision of one (1) Lot into two (2) and the construction of a dwelling house with a swimming pool, engineering and landscaping works on the land at 60-64 Jamieson Close, Horsley Park, known as Lot 8 in DP 240509, subject to the conditions set out in Annexure "A".

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (315973, pdf)

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Decision last updated: 07 February 2022

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