Brinsley Properties Pty Limited v Hawkesbury City Council

[2023] NSWLEC 1433

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brinsley Properties Pty Limited v Hawkesbury City Council [2023] NSWLEC 1433

Hearing dates:

Conciliation Conference on 4 August 2023

Date of orders:

09 August 2023

Decision date:

09 August 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The Appeal is upheld.

(2)   Development Application DA0323/21 (as amended) for tree removal, earthworks, remediation works, Torrens Title subdivision into 22 lots and civil engineering works at 125-129 King Road, Wilberforce is approved subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – Torrens Title subdivision and road construction – conciliation conference – agreement reached – orders made

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.2

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

Hawkesbury Local Environmental Plan 2012, cll 2.6, 4.1, 4.1D, 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 (Transport and Infrastructure) 2021, s 2.119

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

Category:

Principal judgment

Parties:

Brinsley Properties Pty Limited (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Marsdens (Respondent)

File Number(s):

2022/309210

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the Torrens title subdivision of land at 125-129 King Road, Wilberforce, into 22 lots, together with tree removal, construction of a new road and associated earthworks, tree planting and stormwater infrastructure. As part of the plan of subdivision, the new road will be dedicated as a public road. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 4 August 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which is contained in the signed agreement that was filed on 24 July 2023.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 2 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the development application, which was amended in a Notice of Motion before the Registrar on 16 May 2023, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is located in the R2 Low Density Residential zone pursuant to the provisions of the Hawkesbury Local Environmental Plan 2012 (HLEP). The subdivision of land is permissible with development consent pursuant to cl 2.6, and development for the purpose of roads is permissible in the zone.

• The subdivided lots proposed in the development application meet the minimum subdivision lot size established by cl 4.1 of the HLEP, and also meet the requirements of cl 4.1D(1)(b) concerning maximum lot size.

• Based on the summary of the letter of Sydney Water dated 19 July 2023, I am satisfied that the subdivision will be serviced by a reticulated sewerage system, in satisfaction of cl 4.1D(1)(a) of the HLEP.

• The development application includes earthworks for the road construction. Based on the cut and fill plan, the Preliminary Salinity Assessment Report dated 7 April 2021, the Preliminary & Detailed Site Investigation Report dated 7 April 2021 and the proposed conditions of consent, I have considered the matters set out in cl 6.2(3) of the HLEP.

• Based on the letter of Sydney Water dated 19 July 2023, the stormwater concept plans, the plan of subdivision and the existence of electricity in the street, I am satisfied that the services essential for the development are available or that adequate arrangements have been made to make them available, as required by cl 6.7 of the HLEP.

• The site contains land that is identified as “significant vegetation” on the Terrestrial Biodiversity Map, and therefore cl 6.4 of the HLEP applies. As the proposed development is on land that is largely cleared and the development retains most of the trees, I have considered the matters in cl 6.4(3) and I am satisfied of the matters in cl 6.4(4).

• Part of the site contains some vegetation that is typical of the critically endangered ecology community known as Shale Sandstone Transition Forest (SSTF), which is listed in Sch 2 of the Biodiversity Conservation Act 2016. Given that the site is largely cleared and the development retains most of the trees, as well as proposes the planting of additional species of the SSTF, I am satisfied that the proposed development is not likely to significantly affect threatened species within the meaning of s 7.2 of the Biodiversity Conservation Act 2016.

• The site has frontage to King Road, which is a classified road, and s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies. In accordance with s 2.119, vehicular access is provided from George Road, a road other than the classified road, and I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Further, as the proposed development is for subdivision only, it is not of a type that is sensitive to traffic noise or vehicle emissions, in satisfaction of s 2.119(2)(c).

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of s 4.6(2), I have considered a report specifying the findings of a Detailed Site Investigation prepared by Geotest Services Pty Ltd dated 7 April 2021 and a Remediation Action Plan dated 21 April 2021 (RAP). The RAP confirms that the site is able to be remediated in accordance with that plan, and, therefore, will be made suitable for the proposed development.

• The development application was notified by the respondent between 18 November 2021 and 2 December 2021, and an amended development application was notified between 10 and 24 March 2022 and again during the course of the appeal proceedings. I have been informed of the issues raised in the submissions received in response to notification, and I have considered those issues, some of which have been addressed by changes to the design of the proposed development.

6. The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a s 100B Bush Fire Safety Authority, and the terms of the approval are referenced in the conditions of consent in Annexure A.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court orders that:

1. The Appeal is upheld.

2. Development Application DA0323/21 (as amended) for tree removal, earthworks, remediation works, Torrens Title subdivision into 22 lots and civil engineering works at 125-129 King Road, Wilberforce is approved subject to the conditions set out in Annexure A.

J Gray

Commissioner of the Court

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Annexure A

Decision last updated: 09 August 2023