BLR1823 Pty Ltd v Hawkesbury City Council

[2023] NSWLEC 1389

Land and Environment Court

New South Wales

Medium Neutral Citation:

BLR1823 Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1389

Hearing dates:

Conciliation conference on 7 and 27 June, 4, 7 and 13 July 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $9,000.

(3) Development Application No. DA0351/22, which seeks consent for demolition of existing structures, civil works including earthworks, services, internal access roads, construction of a mixed use development comprising of a centre-based child care facility, hospital and day surgery, veterinary hospital, use of existing dwelling as health consulting rooms, two dog parks, ancillary carparking and landscaping at 10 and 16 Old Bells Line Of Road, Kurrajong NSW 2758 (legally known as Lot 2 DP 711222, Lot 271 DP 661435 and Lot 1 DP 828073), as amended, is approved subject to the conditions of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations 2011, cll 107, 108

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Hawkesbury Local Environmental Plan 2012, cll 2,7, 4.3, 4.4, 5.10; 6.1, 6.2, 6.4, 6.7,

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 ss 4.9, 6.65, 9.2, 9.3, 9.4, 9.5

State Environmental Planning Policy (Industry and Employment) 2021, s 3.6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2,3, s 2.119

Texts Cited:

Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021

Hawkesbury City Council Community Participation Plan 2019

Hawkesbury Development Control Plan 2002

Category:

Principal judgment

Parties:

BLR1823 Pty Limited (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/382438

Publication restriction:

Nil

Judgment

1. COMMISSIONER: BLR1823 Pty Ltd (the Applicant) has appealed the refusal by Hawkesbury Council (the Respondent) of its Development Application No. DA0351/22 (the DA or Applicant’s DA), made with owner’s consent, seeking consent for the demolition of existing structures, civil works including earthworks, services, internal access roads, construction (in phases) of a mixed use development comprising of a centre based child care facility, hospital and day surgery, veterinary hospital, use of existing dwelling as health consulting rooms, two dog parks, ancillary carparking and landscaping (the Proposed Development) at 10 and 16 Old Bells Line Of Road, Kurrajong (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s DA was notified from 16 November 2022 to 16 December 2022 pursuant to the provisions of the Hawkesbury City Council Community Participation Plan 2019, and four submissions were received in response to the notification. These submissions have been considered during the development assessment process.

4. On 7 June 2023, and subsequently on 27 June and 4, 7 and 13 July 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A site view of the subject site was undertaken during the conciliation conference and two objectors made submissions to the Court in relation to the Proposed Development.

6. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. section 4.9 of SEPP B&C, requires that a consent authority must not grant consent to a development unless it has assessed whether the development is likely to have any impact on koalas or koala habitat, and:

1. a Koala Assessment Report has been prepared and is included in the Applicant’s Biodiversity Development Assessment Report (BDAR) prepared by Kat Duchatel of Kingfisher Urban Ecology Wetlands confirming that the Subject Site does not contain areas of koala habitat and the majority of the locally occurring native vegetation species will be retained;

2. the Parties have confirmed, and I am satisfied, that the Proposed Development is not likely to have any impact on koalas or koala habitat and that the matters set out in s 4.9 of the SEPP B&C have been addressed;

2. having regard to the savings provision in s 6.65 of SEPP B&C, the provisions of Ch 9 of that SEPP, which was in force at the time of lodgement of the development application, apply to the Proposed Development, and:

1. the provisions of s 9.2 require that a consent authority, or the Court on appeal, must consider whether the Proposed Development is likely to have any impact on the Hawkesbury-Nepean River system including in relation to its water quality; and in relation to this

2. the Parties have confirmed, and I am satisfied, that, consistent with the provisions of s 9.3(1) of SEPP B&C, the general planning considerations set out in s 9.4, and the specific planning policies and related recommended strategies set out in s 9.5, which are applicable to the Proposed Development, have been taken into consideration in the design of the Proposed Development;

2. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the Subject Site is currently being used for residential and commercial purposes;

2. the Proposed Development will be used for a mixed-use development comprising of a centre-based child care facility, hospital and day surgery, veterinary clinic, use of existing dwelling as health consulting rooms, two dog parks and car parking;

3. the Applicant has provided a Preliminary Site Investigation that recommended that a Detailed Site Investigation be undertaken, and subsequently, a Detailed Site Investigation was prepared by Martens & Associates in November 2022 which has confirmed that no further contamination investigation is required; and

4. the Parties have confirmed, and I am satisfied, that the Subject Site is suitable for its intended use under the Proposed Development, as amended, and that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal;

3. in relation to the provisions of Ch 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) concerning infrastructure:

1. the provisions of s 2.119 of SEPP T&I require that a consent authority, or the Court on appeal:

1. must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that, where practicable and safe, vehicular access to the land is provided by a road other than the classified road;

2. the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the design of the vehicular access to the land, the emission of smoke or dust from the development, or the nature, volume or frequency of vehicles using the classified road to gain access to the land;

3. the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road;

2. the Applicant’s proposed vehicular access:

1. is not via a classified road;

2. has been designed to minimise any adverse impact on the safety, efficiency, and ongoing operation of Old Bells Line of Road, as confirmed in the Applicant’s Transport Impact Assessment prepared by Stantec;

3. the Parties have agreed, and I am satisfied, that the Proposed Development is consistent with the provisions of s 2.119 of SEPP T&I;

4. the Parties have also advised that on 30 November 2022 the Respondent referred the Application to Transport for NSW (TfNSW) for comment in accordance with s 2.119; and

1. a response was received on 20 December 2022 from TfNSW identifying a number of matters that should be addressed before the DA would be determined;

2. the amended Applicant’s DA, incorporating design changes in response to the comments from TfNSW, was referred to TfNSW on 5 June 2023 and no response from TfNSW had been provided to the Respondent at the time that the Parties entered into their agreement under s 34 of the LEC Act; and

3. as Transport for NSW is not a concurrence authority for the purposes of the Applicant’s DA, and TfNSW approval is not required to enliven the Court’s power to determine this appeal, and noting that the Parties have confirmed that the Applicant has responded adequately to the comments received from TfNSW, I am further satisfied that the Applicant’s DA, as amended, is now consistent with the provisions of s 2.119 of SEPP T&I;

4. in relation to the provisions of Ch 3 of SEPP T&I concerning educational establishments and child care facilities:

1. the provisions of s 3.22 would require the concurrence of the Regulatory Authority for the Proposed Development if the Applicant’s proposed floor area does not comply with cl 107 of the Education and Care Services National Regulations 2011 (the Regulations), or the proposed outdoor space requirements for the Proposed Development do not comply with cl 108, and:

1. clause 107 of the Regulations requires 3.25 square metres of unencumbered indoor space per child which is a minimum of 260 square metres, the Proposed Development includes over 260 metres of unencumbered indoor space and therefore complies with the provisions of cl 107;

2. clause 108 of the Regulations requires the provision of 7 square metres of unencumbered outdoor space for each child which would be a minimum of 560 square metres, the Proposed Development proposes a total of 590 square metres of outdoor space and therefore complies with the provisions of cl 108; and

3. the Parties agree and I am satisfied that the concurrence of the Regulatory Authority is not required as the Proposed Development complies with the provisions cll 107 and 108 of the Regulations, and the Applicant has provided a statement prepared by Amy Sutherland, Town Planner of Sutherland and Associates Planning dated 5 July 2023, confirming the same;

2. SEPP T&I also requires a consent authority, or the Court on appeal, to take into consideration any applicable provisions of the NSW Department of Planning, Industry and Environment Child Care Planning Guideline 2021 (Child Care Planning Guideline), in relation to the Proposed Development; and

3. the Parties agree, and I am satisfied, that:

1. the relevant provisions of Ch 3 of SEPP T&I, including in relation to the relevant provisions of the Child Care Planning Guideline, have been considered in the Proposed Development, as also confirmed in the Applicant’s Statement of Environmental Effects prepared by Sutherland & Associates Planning; and

2. the Proposed Development achieves consistency with the relevant matters for consideration under Ch 3 of SEPP T&I;

5. in relation to the provisions of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP I&E):

1. the provisions of s 3.6 of SEPP I&E require that a consent authority, or the Court on appeal, must not grant consent to an application to display signage unless it is satisfied that the signage is compatible with the desired amenity and visual character of an area, provides effective communication in suitable locations and is of high-quality design and finish; and

2. the Parties agree, and I am satisfied, that the matters set out in s 3.6 of SEPP I&E have been satisfied by the Proposed Development, as confirmed in the Applicant’s Entrance Signage Location Plan prepared by Quantum 3D;

6. in relation to the provisions of the Rural Fires Act 1997 (the RF Act):

1. the Subject Site is identified as bushfire prone land and the Applicant’s proposed centre-based child care facility and hospital uses are classified as ‘special fire protection purposes’, pursuant to s 100B of the RF Act;

2. the Proposed Development requires a bushfire safety authority to be issued in accordance with clause 100B of the RF Act and the it is also ‘integrated development pursuant to s 4.46 of the EP&A Act, and:

1. the NSW Rural Fire Services has issued their General Terms of Approval, which are included with the Parties’ agreed conditions of consent, and has issued a bushfire safety authority dated 17 February 2023; and

2. the Parties agree, and I am satisfied, that the provisions of s 100B of the RF Act are satisfied by the Proposed Development, as amended;

7. in relation to the provisions of Hawkesbury Local Environmental Plan 2012 (HLEP):

1. development for the purposes of a mixed-use development comprising of a centre-based child care facility, hospital and day surgery, veterinary clinic, use of existing dwelling as health consulting rooms, two dog parks is permitted with consent in the RU1 Primary Production zoning of the Subject Site.

2. the Subject Site proposes demolition of the existing veterinary hospital and requires consent pursuant to cl 2.7 of the HLEP, and the parties agreed conditions of consent include conditions in relation to demolition;

3. the Subject Site is subject to a maximum height of buildings (HoB) development standard of 10m pursuant to cl 4.3 of the HLEP and the height of the Proposed Development complies with the maximum HoB standard as confirmed within the following Applicant plans:

1. Drawing No. 120V – Section AA Revision K – dated 17.09.21;

2. Drawing No. 1200HD – Sections AA, Section BB Revision K;

3. Drawing No. 120G – Section AA, Revision J – dated 17.09.21; and

4. Drawing No. 120C – Sections – AA + BB Revision G – dated 17.09.21;

4. the Subject Site is not subject to a maximum floor space ratio development standard and so the provisions of cl 4.4 of HLEP are not engaged by the Applicant’s DA;

5. the Subject Site is not a heritage item or located within nearby heritage items or located within a heritage conservation area and accordingly the provisions of cl 5.10 of HLEP are not engaged by the Applicant’s DA;

6. the Subject Site is identified as being within a Class 5 acid sulfate soils area, but the Proposed Development is not within 500 metres of Class 1, 2, 3 or 4 land and so no acid sulfate soils management plan is required in relation to the provisions of cl 6.1 of HLEP;

7. the Parties have advised, and I am satisfied, that the extent of earthworks proposed by the Applicant within its Proposed Development are unlikely to result in significant or adverse disruption of drainage patterns or soil stability, in accordance with provisions of cl 6.2 of HLEP;

8. the Subject Site is identified as containing potentially significant vegetation and connectivity between significant vegetation on the Respondent’s Terrestrial Biodiversity Map, and:

9. under the provisions of cl 6.4 of HLEP the consent authority, or Court on appeal, must consider whether the development is likely to have any adverse impacts on the native flora, native fauna and ecological processes; and:

1. the Parties agree, and I am satisfied, that the Applicant’s BDAR confirms that the Proposed Development is unlikely to have any adverse impacts on the native flora, native fauna and ecological processes; and

2. the Proposed Development is consistent with the provisions of cl 6.4 of the HLEP;

10. pursuant to the provisions of cl 6.7 of the HLEP, the Subject Site already has adequate supply of water and electricity, the Proposed Development includes provisions for the disposal and management of sewage, stormwater drainage and suitable road access which is available to the Subject Site; and

1. the Parties have confirmed, and I am satisfied, that the provisions of cl 6.7 of HLEP are fulfilled;

8. in relation to the provisions of Hawkesbury Development Control Plan 2002 (HDCP) the Parties have advised, and I am satisfied, that the Proposed Development, as amended, meets the relevant controls within HDCP, or if not, the Proposed Development, as amended, achieves the objectives of those controls such that it represents a reasonable alternative solution meriting the application of flexibility in the application of those controls as required under the provisions of s 4.15(3A)(2) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the Applicant’s DA;

2. the Applicant’s DA can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EP&A Act, including the submissions received in response to notification which have been considered by the Parties in reaching agreement;

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and

4. approval of the Proposed Development is in the public interest.

10. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court notes that:

1. pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (the EP&A Regulation) the Applicant applied to the Respondent consent authority for an amendment to Development Application No DA0351/22 lodged 18 October 2022, and as amended on 23 June 2022 (the Development Application), in accordance with the documents listed in Annexure A (the Amended Application’). Pursuant to s 38(1) of the EP&A Regulation the respondent consent authority has approved the application to amend the Development Application;

2. the Applicant is not required to lodge the Amended Application on the NSW Planning Portal pursuant to s 37(7) of the EP&A Regulation;

3. the Applicant filed the Amended Application with the Court on 18 July 2023.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $9,000.

3. Development Application No. DA0351/22, which seeks consent for demolition of existing structures, civil works including earthworks, services, internal access roads, construction of a mixed use development comprising of a centre-based child care facility, hospital and day surgery, veterinary hospital, use of existing dwelling as health consulting rooms, two dog parks, ancillary carparking and landscaping at 10 and 16 Old Bells Line Of Road, Kurrajong NSW 2758 (legally known as Lot 2 DP 711222, Lot 271 DP 661435 and Lot 1 DP 828073), as amended, is approved subject to the conditions of consent in Annexure B.

M Chilcott

Commissioner of the Court

**********

Annexure A (116496, pdf)

Annexure B (371071, pdf)

Decision last updated: 24 July 2023