Bugeja v Hawkesbury City Council

[2019] NSWLEC 1219

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bugeja v Hawkesbury City Council [2019] NSWLEC 1219
Hearing dates:	Conciliation conference on 5 April 2019
Date of orders:	22 May 2019
Decision date:	22 May 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [17] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Hawkesbury LEP 2012 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Josephine Bugeja (First Applicant) John Phillip Bugeja (Second Applicant) Hawkesbury City Council (Respondent)
Representation:	Solicitors: C Parsons, Bartier Perry (Applicants) J McCullan, Marsdens Law Group (Respondent)
File Number(s):	2018/273827
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the Respondent’s deemed refusal of development application DA0027/18 (‘DA’). The DA sought consent for the construction of a new single storey dwelling and conversion of an existing dwelling to tourist and visitor accommodation (serviced apartment) at 1182 Kurmond Road Kurmond, also known as Lot 111 in Deposited Plan 860774.

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 5 April 2019. I presided over the conciliation conference, which occurred on site.

3. Subsequent to the conciliation conference, and the supply of certain additional information, 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. 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.

5. 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. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied.

Jurisdiction

6. I accept the advice of the parties that the DA was properly made, including in regard to owner consent for the land to which the DA relates.

7. In regard to permissibility, I note that dwelling houses are permissible in the RU1 Primary Production Zone under the LEP. Tourist and visitor accommodation is also permissible in the RU1 Primary Production Zone under Hawkesbury LEP 2012 (‘LEP’).

8. In regard to the other aspect of the proposal, the Dictionary to the LEP relevantly defines tourist and visitor accommodation as:

tourist and visitor accommodation means a building or place that provides temporary or short-term accommodation on a commercial basis, and includes any of the following:

(a) backpackers’ accommodation,

(b) bed and breakfast accommodation,

(c) farm stay accommodation,

(d) hotel or motel accommodation,

(e) serviced apartments,

…

9. Serviced apartments are defined as:

serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner’s or manager’s agents.

10. It is important to note that dual occupancy (detached) development is prohibited development on land zoned RU1 Primary Production under the LEP.

11. The parties have entered into an agreement based upon conditions of consent that provide that an occupation certificate for the new dwelling house will not be provided until a final occupation certificate is obtained for the use of the existing dwelling as tourist and visitor accommodation and requiring the surrender of any development consent for the use of the existing dwelling as a dwelling house prior to the occupation of the new dwelling house. (see conditions 2A and 5A)

12. Upon the commencement of the use of the existing dwelling as tourist and visitor accommodation, the existing dwelling will no longer be used, or lawfully be capable of being used, as a dwelling house. Furthermore, a final occupation certificate for the use of the existing dwelling as tourist and visitor accommodation is required prior to any occupation certificate being issued for the new dwelling house.

13. The proposed development, properly characterised, is not for the purpose of dual occupancy (detached) development. To the extent that there remains any concern as to the possibility of the existing dwelling being used as a separate domicile, I accept the parties’ agreement that the proposed conditions of consent address those matters.

14. In relation to State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in accordance with the position of the parties, I am satisfied that the requirements of cl 7 of SEPP 55 are addressed. I am satisfied with this position mindful of the Preliminary Site Investigation Contaminated Land Assessment (Review) prepared by Dr Peter Bacon (of Woodlots and Wetlands Pty Ltd) in Association with Dr Jane Aiken (of Consulting Environmental Services), with covering letter dated 30 April 2019.

15. On the basis of the above, 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.

16. 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. I note that in this instance the Court is not required to give consideration to the individual merits issues in relation to the matter.

17. The Court orders:

1. The Applicant is granted leave to amend Development Application No DA0027/18 and to rely upon the following plans and documents:

1. Amended Architectural plans annexed hereto and marked “A” and listed as follows:

DRAWING NUMBER / NAME	PREPARED BY	REV	DATE
Cover Page	PA	L	10 April 2019
BASIX Certificate, Sheet No. 1	PA	L	10 April 2019
Location Plan, Sheet No. 2	PA	L	10 April 2019
Site Plan, Sheet No. 3	PA	L	10 April 2019
Ground Floor, Sheet No. 4	PA	L	10 April 2019
Elevations 1 & 2, Sheet No. 5	PA	L	10 April 2019
Elevations 3 & 4, Sheet No. 6	PA	L	10 April 2019
Section X – X & Drivegrade, Sheet No. 7	PA	L	10 April 2019
Relocated Shed, Sheet No. 8	PA	L	10 April 2019
Existing Residence, Sheet No. 9	PA	L	10 April 2019
Waste Water, Sheet No. 2.0	PA	L	10 April 2019
Site Analysis, Sheet No. 2.1	PA	L	10 April 2019
Construction Management Plan – Erosion & Sediment Control Plan, Sheet No. 2.2	PA	L	10 April 2019
Stormwater Management Plan, Sheet No. 2.3	PA	L	10 April 2019
Neighbours Notification Plan, Sheet No. 2.4	PA	L	10 April 2019
Site Landscape Plan, Sheet No. 2.5	PA	L	10 April 2019
Landscape Plan, Sheet No. 2.5 A	PA	L	10 April 2019

2. Updated Plan of Management prepared by Haskew de Chalain Planning, dated April 2019;

2. The appeal is upheld.

3. Development Application No DA0027/18, as amended, seeking consent for the construction of a new single storey, sole occupancy dwelling, relocation of the existing outbuilding, fill of the existing water storage dam, construction of a new water storage dam, and the retention and conversion of the existing dwelling to tourist and visitor accommodation (serviced apartment) on the land at 1182 Kurmond Road, Kurmond is granted subject to the conditions of consent annexed hereto and marked “B”.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A 

Annexure B 

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Decision last updated: 22 May 2019