Blake v Hornsby Shire Council

[2021] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blake v Hornsby Shire Council [2021] NSWLEC 1349

Hearing dates:

27 May 2021

Date of orders:

15 June 2021

Decision date:

15 June 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The orders of the Court are:

(1) By consent, the appeal is upheld.

(2) The Applicant’s development application DA-123/2020 for the demolition of an existing building and Torrens Title subdivision of two lots into five lots on land known as 18 Turner Rd and 67 Woodcourt Road, Berowra Heights is determined by the grant of consent, subject to the conditions annexed hereto at Annexure ‘A’.

(3) The exhibits are returned, except for Exhibits A, 1 and 2.

Catchwords:

DEVELOPMENT APPLICATION – consent orders – subdivision of land – potential flooding impacts – potential biodiversity impacts – resident objectors – public interest

Legislation Cited:

Conveyancing Act 1919, s 88E

Environmental Planning and Assessment Act 1979, ss 4.15(1), 4.15(3A), 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 77, Sch 1 cl 2A

Hornsby Local Environment Plan 2013, cll 2.3, 2.6, 6.1

Land and Environment Court Act 1979, s 17

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (April 2021)

Land and Environment Court of New South Wales, Practice Note – Class 1 Development Appeals

Hornsby Development Control Plan 2013

Category:

Principal judgment

Parties:

Peter Blake (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
A McKelvey (Solicitor) (Applicant)
A Pickup (Solicitor) (Respondent)

Solicitors:
Sparke Helmore (Applicant)
Local Government Legal (Respondent)

File Number(s):

2020/207052

Publication restriction:

No

Judgment

1. COMMISSIONER: Peter Blake (the Applicant) has appealed the deemed refusal by Hornsby Shire Council (the Respondent) of his development application (DA 123/2020) seeking consent for the demolition of an existing building and Torrens Title subdivision of two lots into five lots, along with certain earthworks, stormwater management works and the provision of access to the Subject Site (the Proposed Development) on land known as 18 Turner Rd and 67 Woodcourt Road, Berowra Heights (the Subject Site).

2. The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and is determined subject to the provisions of s 4.16 of that Act. The proceedings fall within Class 1 of the Court’s jurisdiction under the provisions of s 17 the Land and Environment Court Act 1979 (the LEC Act). The Parties advised that the contentions between them had been resolved and they now come before the Court seeking orders by consent.

3. The hearing was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of the hearing, and the evidence of one objector, Mr Graeme Cosier was taken via Microsoft Teams.

4. Mr Cosier’s submission, which was complemented by a written submission, identified the following specific matters of concern:

1. the need for a restriction on title to require that no construction vehicles should be parked, nor construction materials stored, within the area identified as the overland flow path on the Subject Site;

2. the need for a restriction on title to ensure that the shape of the proposed overland flow path would be maintained, particularly at the boundary with 61 Woodcourt Road;

3. the desirability of adjusting the paling fence on the north west side of 67 Woodcourt Road to facilitate passage of stormwater along the proposed overland flow path;

4. the retention of a line of camelias just outside lot 4 which he was concerned would be removed under the Proposed Development because they had not been specifically noted in the arborist’s report upon which the Parties relied;

5. the need for a condition to ensure construction of a drainage pit just inside the boundary with 67 Woodcourt Road to capture existing stormwater flows;

6. the adequacy of the Applicant’s two proposed 750mm diameter pipes to capture and transport required flows, and the capacity of the landscape to accept these two structures and still allow for vehicle movements across their alignment;

7. potential contamination impacts associated with potential asbestos within the existing dwelling on the Subject Site and its stability in relation to any proposed relocation of that structure.

5. During the hearing the Parties provided responses to the matters raised by Mr Cosier, and agreed to the imposition of a further proposed condition of consent (proposed condition 25A) in response to the submission of Mr Cosier.

Application for consent orders

6. The Court’s Practice Note – Class 1 Development Appeals (at par 99), provides as follows in relation to applications for final orders by consent of parties in circumstances where the appeal concerns the refusal of a development application:

“[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.”

7. During the hearing the Respondent advised that it had notified all objectors on 12 May 2021 that this appeal had been listed for consent orders on 27 May 2021, and that the hearing would commence via Microsoft teams at 10am.

8. The Respondent also advised that:

1. it had shared with the objectors in advance of the hearing, the proposed consent orders to be sought by the Parties and the proposed conditions of consent that would be presented to the Court;

2. it had also confirmed to the objectors that, based on the advice of Parties’ experts, and having considered their submissions, the Parties had resolved all contentions in the appeal.

9. I am satisfied that the Respondent made all reasonable efforts, including by way of notification, to contact objectors to the Applicant’s modification application and to ensure that they were advised of the time and date of the consent orders hearing, and of the opportunity to make representations to the Court in these proceedings.

10. At the commencement of the hearing the Parties noted that following the lodgement of the Applicant’s Class 1 appeal documentation and plans, the Court had granted leave to rely on amended plans on 2 March 2021.

11. Before the Court can grant consent, the Parties must also demonstrate that the relevant statutory provisions applicable to the Proposed Development have been met, and that the concerns of objectors have been properly taken into account.

12. The Parties addressed these matters during the hearing at Court.

Jurisdictional considerations

Environmental Planning and Assessment Act 1979

13. Section 4.15(1) of the EP&A Act provides:

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

14. Section 4.15(3A) of the EP&A Act provides as follows:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority -

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

State Environmental Planning Policy No 55—Remediation of Land

15. Clause 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP55) provides that:

A consent authority must not consent to the carrying out of any development on land unless -

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

16. The Parties have advised, and I am satisfied, that a Detailed Site Investigation has been undertaken on the Subject Site and a Remediation Action Plan (RAP) together with an Interim Audit Statement have been provided by the Applicant. As a consequence, I am also satisfied that the Subject Site can be made suitable for its intended use as medium density residential development, subject to the remediation works identified within the RAP being undertaken as recommended, and as required by the agreed conditions of consent.

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

17. A BASIX Certificate (No. 1042992M_02) has been provided by the Applicant in relation to its Proposed Development, as amended in satisfaction of the provisions of both State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

18. The Parties advise, and I am satisfied, that design of the Proposed Development complies with the relevant provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP65), including the provisions of cl 28, and an updated Design Verification Statement has been provided by the Applicant which demonstrates this compliance.

Hornsby Local Environmental Plan 2013

19. Under the provisions of cl 2.3 of Hornsby Local Environmental Plan 2013 (HLEP) the Subject Site is zoned R2 Low Density Residential. The objectives of this zone are to:

provide for the housing needs of the community within a low density residential environment.

enable other land uses that provide facilities or services to meet the day to day needs of residents.

20. The subdivision of land as proposed by the Applicant in its development application is a permitted use in the R2 Low Density Residential zone applicable to the Subject Site pursuant to the provisions of cl 2.6 of HLEP.

21. Clause 2.6(2) of HLEP requires that development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land. The minimum lot size applicable to the Subject Site is 500m², and each of the proposed lots within the subdivision has an area in excess to this minimum area.

22. The following further provisions of HLEP are of particular relevance in this appeal:

1. clause 2.7 concerning demolition which is permissible with consent on the Subject Site;

2. clause 6.2 concerning earthworks which are required to be undertaken as part of the Proposed Development. The Parties advise, and I am satisfied, that they have considered the matters identified within cl 6.2(3) of HLEP. Further, the Parties have confirmed that the Proposed Development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land and that the objective of cl 6.2 is achieved;

3. clause 6.3 concerning flood planning in relation to which the Parties confirmed at the hearing, and I am satisfied, that on the basis of the evidence of the Applicant’s stormwater expert, Mr Stanley Leung of Martens Associates, the Proposed Development:

1. is compatible with the flood hazard of the land, and

2. will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

3. incorporates appropriate measures to manage risk to life from flood, and

4. will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

4. clause 6.4 concerning terrestrial biodiversity, in relation to which the Subject Site is not mapped as having biodiversity on the Respondent’s Terrestrial Biodiversity, and so the clause does not apply to the Subject Site.

Hornsby Development Control Plan 2013

23. Hornsby Development Control Plan 2013 (HDCP) was in force at the time that the Applicant lodged its development application for the Proposed Development.

24. The Parties have advised, and I am satisfied, that the Proposed Development, subject to the Parties’ proposed conditions of consent, is compliant with all relevant controls within HDCP, including that the Proposed Development complies with the provisions concerning biodiversity within Part 1C.1.1 of HDCP.

25. The Respondent confirmed that the Applicant’s development application had been notified as required under the provisions of cl 77 of the EP&A Regulation, and Part 1B.5 of HDCP.

Contentions

26. As noted above at [1], the Applicant seeks consent for the demolition of an existing building and Torrens Title subdivision of two lots into five lots, along with certain earthworks, stormwater management works and the provision of access to the Subject Site.

27. The contentions in the appeal concerned the loss of trees, loss of biodiversity, the proposed subdivision pattern, the amount of development proposed on the Subject Site and potential stormwater and flooding issues, along with the public interest noting the content of objector submissions following notification of the Proposed Development.

28. The Parties agreed that these contentions had been resolved through the advice of the Parties experts, and the proposed imposition of conditions of consent.

29. In particular the Parties noted that:

1. matters relating to the potential loss of trees had been resolved through the imposition of conditions of consent requiring the retention and protection of identified trees along with replacement plantings;

2. matters relating to the potential loss of biodiversity had been resolved through the proposed imposition of conditions of consent requiring the protection of identified trees, along with the creation of restricted development areas and the management of offset plantings, noting, as identified above (at [22(4)]) that cl 6.4 of HLEP does not apply to the Subject Site;

3. matters relating to the proposed subdivision pattern has been resolved through the imposition of proposed conditions of consent;

4. matters relating to the management of stormwater and flooding had been resolved through the design of the Applicant’s Proposed Development that satisfied the provisions of cl 6.3 of HLEP (see above at [22(3)]), which had been underpinned by the proposed imposition of condition of consent.

Conclusion

30. I am satisfied that:

1. the Applicant’s development application has been properly made;

2. all contentions in this appeal had been resolved, and the resolution of the contentions is supported by, and reflected in, the Parties’ proposed conditions of consent;

3. the Court’s requirements concerning the notification of applications for final orders by consent have been satisfactorily addressed;

4. the concerns of the objectors to the Applicant’s Proposed Development, particularly in relation to potential stormwater management impacts have been addressed (see above at [5]);

5. the jurisdictional perquisites applicable in the appeal, including the provisions of s 4.15(1) of the EP&A Act, have been satisfied; and

6. approval of the Applicant’s development application is in the public interest.

31. Consequently, I conclude that the Applicant’s development application for the Proposed Development as amended, should be approved, subject to conditions.

Orders

32. The orders of the Court are:

1. By consent, the appeal is upheld.

2. The Applicant’s development application DA 123/2020 for the demolition of an existing building and Torrens Title subdivision of two lots into five lots on land known as 18 Turner Rd and 67 Woodcourt Road, Berowra Heights, is determined by the grant of consent, subject to the conditions annexed hereto at Annexure ‘A’.

3. The exhibits are returned, except for Exhibits A, 1 and 2.

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (308446, pdf)

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Decision last updated: 15 June 2021