Boyce v Hornsby Shire Council

[2021] NSWLEC 1634

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boyce v Hornsby Shire Council [2021] NSWLEC 1634

Hearing dates:

Conciliation conference on 26 August 2021 and 11 October 2021

Date of orders:

21 October 2021

Decision date:

21 October 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being granted leave to rely upon the Amended Development Application in the agreed amount of $5,000 within 14 days of the date of these orders.

(2) The Appeal is upheld.

(3) Development Application No. DA/859/2020 (as amended) for demolition of detached garage, Torrens Title subdivision of one lot into two and associated civil works and the erection of a new dwelling house at 130 Victoria Road, West Pennant Hills is approved subject to the conditions in Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.5

Environmental Planning and Assessment Regulation 2000, cl 55

Hornsby Local Environmental Plan 2013, cll 2.6, 2.7, 4.1, 4.3, 6.2

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 55 – Remediation of Land

Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2—1997)

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

Texts Cited:

Hornsby Development Control Plan 2013

Category:

Principal judgment

Parties:

Greg Boyce (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers (Respondent)

File Number(s):

2021/111794

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings have been brought to the Court under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act). They arise as the result of the actual refusal by Hornsby Shire Council of development application DA/859/2020, seeking consent for the demolition of a detached garage and concrete pad, and the Torrens title subdivision of one lot into two at No. 130 Victoria Road, West Pennant Hills.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 August 2021 and further on 11 October 2021. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. As a result of this agreement, the application was amended with the consent of the Respondent pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and the drawings that constitute the current application are listed under Annexure A. These final drawings were uploaded onto the NSW Planning Portal and filed with the Court as required. The final amendment was also advertised and notified to adjoining and nearby landowners in accordance with Hornsby Council’s Community Participation Plan, between 23 September and 7 October 2021. No submissions were received.

5. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which have been identified by the parties. From this I note the following points:

6. Pursuant to cll 2.6 and 2.7 respectively of the Hornsby Local Environmental Plan 2013 (HLEP), subdivision and demolition is permissible with consent. Further, development for the purpose of dwelling houses is permissible with consent in the R2 Low Density Residential zone under which this land is zoned.

7. I have had regard to the objectives of the R2 zone and am satisfied that, in providing two dwellings within complying lot sizes, the proposed development provides for the housing needs of the community within a low density environment.

8. The minimum lot size of 500sqm prescribed by the HLEP cl 4.1 is complied with in this development, with the front lot (Lot 51) with an area of 621.5sqm, and the rear lot (Lot 52) with an area of 596sqm, excluding the panhandle access way.

9. The maximum height of buildings set for this site under the HLEP cl 4.3 is 8.5m, and the development complies with this in having a maximum height of 8.5m.

10. Minor earthworks are proposed for the driveway and drainage of the site, and I am satisfied based on the engineering plans and relevant conditions of consent that stormwater and drainage will not have an adverse impact on the environment, and therefore that the requirements of HLEP cl 6.2 have been met.

11. State Environmental Planning Policy No 55 – Remediation of Land considers contamination and ensures that a site is suitable for the intended use. Based on the information in the Statement of Environmental Effects (SEE) and Council’s assessment report, I am satisfied that the site has, historically, consistently been used for residential purposes and is suitable for continued use as a residential development without remediation.

12. Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River (No 2 - 1997) (SEPP 20) applies to the land, and requires consideration of how the Hawkesbury Nepean River system will be protected from adverse impacts caused by the development. In this case the relevant impacts would result from stormwater discharge, and I am satisfied based on the stormwater plans and conditions of consent that this application will not have an adverse impact on the Hawkesbury Nepean River in terms of both stormwater quality and quantity.

13. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been provided to accompany the final amendment.

14. 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.

15. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The Court notes:

1. that the Applicant has amended development application no. DA/859/2020 with the agreement of Hornsby Shire Council as the relevant consent authority pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to incorporate the amended plans and documents referred to in Annexure A (“Amended Development Application”).

2. that the Amended Development Application has been lodged on the NSW planning portal on or about 27 September 2021, and updated on or about 29 September 2021; and

3. that the Applicant has subsequently filed the Amended Development Application with the Court on 11 October 2021.

17. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being granted leave to rely upon the Amended Development Application in the agreed amount of $5,000 within 14 days of the date of these orders.

2. The Appeal is upheld.

3. Development Application No. DA/859/2020 (as amended) for demolition of detached garage, Torrens Title subdivision of one lot into two and associated civil works and the erection of a new dwelling house at 130 Victoria Road, West Pennant Hills is approved subject to the conditions in Annexure B.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (120061, pdf)

Annexure B (332458, pdf)

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Decision last updated: 21 October 2021