Buildwell Australia 3 Pty Ltd v The Hills Shire Council

[2024] NSWLEC 1161

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Buildwell Australia 3 Pty Ltd v The Hills Shire Council [2024] NSWLEC 1161

Hearing dates:

Conciliation Conference on 15 and 18 March 2024

Date of orders:

09 April 2024

Decision date:

09 April 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or as assessed, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Deferred development consent is granted to development application No. 872/2023/ZA as amended, for the demolition of existing structures, construction of a private road, retaining wall and civil engineering works and subdivision of land to create six Community Title lots on land legally described as Lot G in DP367326 and known as 14 Telfer Road, Castle Hill NSW 2154, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – deferred development consent - orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.2, 7.3

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29,38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

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

The Hills Local Environmental Plan 2019, cll 2.2, 2.3, 2.6, 2.7, 4.1, 4.1AA, 5.16, 5.21, 7.2, 7.3, 7.6, 7.31

Texts Cited:

The Hills Shire Community Participation Plan 2021-2024

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Buildwell Australia 3 Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
K Law (Respondent)

Solicitors:
MacPherson Kelley (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s):

23/130809

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by The Hills Shire Council of development application No. 872/2023/ZA (the DA) for the demolition of existing structures, an infill subdivision creating six residential lots including new road and landslide risk stabilisation on land legally described as Lot G in DP367326 and known as 14 Telfer Road, Castle Hill NSW 2154 (the site).

2. A s 34 conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 19 October 2023. No agreement was reached, and a hearing was set down for 15 and 18 March 2024.

3. On 9 February 2024, the Applicant was granted leave by the Court to rely upon the amended plans and material set out in the Applicant’s Notice of Motion dated 9 February 2024. An amended Statement of Facts and Contentions (amended SOFAC) was filed by the Respondent on 1 March 2024. Joint expert reports on arboriculture and ecology, town planning, geotechnical investigation and slope stability, traffic assessment and engineering were filed with the Court prior to the hearing date.

4. At the commencement of the hearing on 15 March 2024, at the on-site view, the parties indicated that a s 34 agreement had been reached, subject to resolving several outstanding conditions. One submitter attended the on-site view. The hearing was adjourned to allow for the draft conditions of consent to be finalised.

5. At the request of the parties, the Court then made an order on 15 March 2024 adjourning the matter for a s 34 conciliation conference. I presided over the conciliation conference, held on 15 and 18 March 2024.

6. A signed s 34 agreement with Annexure A was filed with the Court on 18 March 2024, with amended plans and additional material (the Further Amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The parties advise that the key changes made in the Further Amended DA differ from the previous amended plans as follows:

1. The most significant change is for amended subdivision plans reducing the number of residential lots from six to five in a Community Title subdivision, the sixth lot being the access road lot;

2. Amended engineering plans;

3. Amended Arboriculture Impact Assessment Report;

4. Amended Biodiversity Development Assessment Report;

5. Amended Vegetation Management Plan;

6. Amended Geotechnical Investigation and Slope Stability Assessment Report; and

7. Traffic Assessment Report.

8. The parties have also agreed to a number of detailed deferred commencement conditions relating to the provision by the Applicant of further updated reports and plans relating to geotechnical requirements, civil design requirements, traffic requirements, planning requirements and conservation requirements which the parties agree are required before the proposed development proceeds.

9. The parties’ decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

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

11. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

13. Landowner’s consent by the previous owner of the site was provided when the DA was originally lodged. The site is now owned by the Applicant.

The Hills Shire Community Participation Plan (Sch 1, Div 2, s 7(1))

14. The DA was notified by the respondent for a period of 21 days, between 14 December 2022 and 25 January 2023, as required under the provisions of The Hills Shire Community Participation Plan. Two submissions were received in response to that notification.

15. The first amended DA was re-notified between 14 February 2024 and 27 February 2024 by the Respondent in accordance with The Hills Shire Community Participation Plan. As a result of the renotification, the Respondent received two submissions.

16. The Further Amended DA (the subject of the s 34 agreement) was not re-notified as the Respondent had formed the opinion that the amendments do not alter the external configuration of siting of the development nor change the likely impact on any affected person.

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

The Hills Local Environmental Plan 2019

18. The Hills Local Environmental Plan 2019 (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned C4 Environmental Living zone pursuant to cl 2.2 of the LEP; and

1. The proposed development is permitted with consent within the C4 Environmental Living zone;

2. The parties advise that the proposed development achieves the objectives of the C4 Environmental Living zone at cl 2.3 of the LEP. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 2.7 of the LEP, demolition works are permissible with consent.

3. The provisions of cl 4.1 (Minimum Lot Size) and cl 4.1AA (Minimum subdivision lot size for community title schemes) of the LEP apply to the site. Clauses 4.1(2), 4.1(3) and 4.1AA(3) of the LEP together prescribe a minimum community title subdivision lot size of 2000 m²; and

1. The Further Amended DA complies with the minimum subdivision lot size control under Clause 4.1 and Clause 4.1AA of the LEP.

4. Clause 5.16 of the LEP relates to the subdivision of, or dwellings on, land in certain rural, residential or conservation zones and applies to the subject site; and

1. The parties advise that the Respondent has taken into account the matters to be taken into account pursuant to cl 5.16(4) in its assessment of the Further Amended DA.

5. The parties advise that the site is mapped for a 1% Annual Exceedance Probability (AEP) event on the Respondent’s Flood Information Plan dated January 2024, and consider the site to be within the flood planning area. Clause 5.21 of the LEP relates to Flood Planning and requires the consent authority to be satisfied of the matters set out under clause 5.21(2) before development consent can be granted; and

1. The Respondent has assessed the additional material provided by the Applicant (relating to flooding and stormwater management) in the Further Amended DA and advises, and I am satisfied that, the proposed development:

1. Is compatible with the flood function and behaviour on the site;

2. Will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

3. Will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

4. Incorporates appropriate measures to manage risk to life in the event of a flood; and

5. Will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

6. Pursuant to cl 7.2 (Earthworks) of the LEP the consent authority must consider the following matters before granting development consent:

1. the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development;

2. the effect of the proposed development on the likely future use or redevelopment of the land;

3. the quality of the fill or the soil to be excavated, or both;

4. the effect of the proposed development on the existing and likely amenity of adjoining properties;

5. the source of any fill material and the destination of any excavated material;

6. the likelihood of disturbing relics;

7. the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area; and

8. any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

7. The Respondent has advised, and I accept, that it is satisfied that the Further Amended DA, and specifically the additional supporting material provided by the Applicant, will not disrupt or have a detrimental effect on drainage patterns and soil stability, will not affect the likely future use or development of the land and will adopt appropriate measures to avoid or minimise impacts on drainage patterns.

8. The site is mapped as having a landslide risk pursuant to cl 7.6 of the LEP. Clause 7.6(3) provides that before determining a development application for the Site, the consent authority must consider whether the development’s design is responsive to the constraints of landslide risk, including:

1. site layout, including access;

2. the building’s design and construction methods;

3. the amount of cut and fill that will be required;

4. waste water management, stormwater and drainage across the site; and

5. the specific geotechnical constraints of the site.

9. Clause 7.6(4) of the LEP provides that consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

1. is designed, sited, constructed and will be managed to avoid any landslide risk and potential adverse impact on the development or on land in the vicinity of the development; and

2. will appropriately manage waste water, stormwater and drainage across the site so as to not affect the rate, volume and quality of water leaving the land.

10. The Respondent has advised, and I am satisfied, that the Further Amended DA and the relevant geotechnical conditions in the agreed conditions of consent satisfy the matters required under Clause 7.6 of the LEP.

Biodiversity Conservation Act 2016

19. The parties advise that the proposed development exceeds the nominated threshold triggers of impacting Biodiversity Values Land, but not the Area Clearing Threshold under the Biodiversity Conservation Act 2016 (BC Act): and

1. The Further Amended DA is accompanied by a Biodiversity Development Assessment Report (BDAR) and Vegetation Management Plan (VMP) prepared by Travers Bushfire & Ecology. Pursuant to s 7.3 of the BC Act, the Biodiversity Report assessed the potential impact of the proposed development under the Further Amended DA on the relevant matters of conservation significance including the Blue Gum High Forest and six identified threatened fauna species. The BDAR concludes that the Further Amended DA is not considered to have a significant impact on or be constrained by matters of conservation and environmental significance subject to the measures proposed in the VMP;

2. The Respondent is satisfied that the Further Amended DA is not likely to significantly affect threatened species or ecological communities or their habitats pursuant to s 7.2 of the BC Act.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site and contains provisions relating to the clearing of native vegetation. This chapter seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the state, and to preserve the amenity of non-rural areas of the State through the appropriate preservation of trees and other vegetation. The parties advise that:

1. A separate permit or approval from Council or the Native Vegetation Panel under the BC SEPP is not required given clearing will be subject to a development consent that is being sought in these proceedings.

21. Chapter 6 of the Biodiversity SEPP applies to the site as it is located within the Sydney Harbour Catchment; and

1. The parties advise, and I agree, that the relevant matters in Divisions 2 and 3 of Chapter 6 of the Biodiversity SEPP are satisfied by the civil engineering plans and reports prepared in relation to stormwater run-off and catchment and water quality management, and the BDAR and VMP prepared for the Further Amended DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

23. The parties advise that the Environmental Site Assessment prepared by Martens & Associates Pty Ltd (Martens) dated October 2022 concludes that the site presents a risk of contamination. A Detailed Site Investigation was carried out by Martens (dated 8 September 2023), which recommends that remediation be carried out and in response, Martens prepared a Remediation Action Plan dated 24 August 2023. The parties submit that Council’s Environmental Health Officer is satisfied that the site can be made suitable for the proposed development with appropriate conditions of consent, and subject to the implementation of the remediation as recommended; and

1. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

The Hills Development Control Plan 2012

24. The Hills Development Control Plan 2012 (the DCP) Part B Section 2 – Residential applies to the site. The Respondent’s Statement of Facts and Contentions (SOFAC) indicated that there were a number of areas of non-compliance with the DCP controls. These areas of concern to the Respondent have been resolved in the Further Amended DA.

Conclusion

25. Having considered the advice of the parties provided above at [13-24], I am satisfied that:

1. The applicants’ Further Amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

26. 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.

27. 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.

28. The Court notes that:

1. The Hills Shire Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No. 872/2023/ZA made on 18 March 2024 to rely on the documents specified below (unless modified to comply with the conditions of consent in Annexure A):

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plans
1	Drawing No: DA-02 Revision C	Subdivision Plan	Bathla	29 November 2023
Civil Engineering Plans
2	Drawing No: 230044-00-DA-C01.01 Revision 2	Cover Sheet and Drawing Schedule	Enspire Solutions	14 March 2024
	Drawing No: 230044-00-DA-C01.41 Revision 1	General Arrangement Plan		25 January 2024
	Drawing No: 230044-00-DA-C02.01 Revision 3	Establishment and Demolition Plan		14 March 2024
	Drawing No: 230044-00-DA-C03.01 Revision 3	Erosion and Sedimentation Control Plan		14 March 2024
	Drawing No: 230044-00-DA-C03.31 Revision 2	Sediment Basin Plan and Details		14 March 2024
	Drawing No: 230044-00-DA-C04.01 Revision 3	Bulk Earthworks – Cut and Fill Plan		14 March 2024
	Drawing No: 230044-00-DA-C05.01 Revision 8	Siteworks and Stormwater Management Plan		14 March 2024
	Drawing No: 230044-00-DA-C10.01 Revision 4	Pavement Plan, Signage and Linemarking Plan		13 March 2024
	Drawing No: 230044-00-DA-C14.01 Revision 3	Siteworks Details Sheet 01		14 March 2024
	Drawing No: 230044-00-DA-C14.02 Revision 1	Siteworks Details Sheet 02		14 March 2024
	Drawing No: 230044-00-DA-C20.21 Revision 3	Post-Development Catchment Plan		11 March 2024
	Drawing No: 230044-00-DA-C20.22 Revision 3	Post-Development Internal Catchment Plan		11 March 2024
	Drawing No: 230044-00-DA-C20.23 Revision 1	1% AEP Flood Extent Plan		29 January 2024
	Drawing No: 230044-00-DA-C20.24 Revision 1	Hills Shire Council’s 1% AEP Flood Extent Plan		29 January 2024
	Drawing No: 230044-00-DA-C22.01 Revision 1	Turning Path Plan		29 January 2024
	Drawing No: SK0025-230044-00 Revision 3	Telfer Road Alignment Higher Than Current Proposal With Wider Vertical Curve		11 March 2024
	Drawing No: SK0027-230044-00 Revision 3	Sight Distance Check For The Option Higher Than Current Proposal		13 March 2024
	Drawing No: SK0029-230044-00 Revision 3	Sight Distance Check Higher Than Current Proposal		13 March 2024
	Drawing No: SK0032-230044-00 Revision 2	Existing Driveway Sight Distance Check Sections Higher Than Current Proposal		11 March 2024
	Drawing No: SK0034-230044-00 Revision 3	Stormwater Chute Concept Design		11 March 2024
	Drawing No: SK0035-230044-00 Revision 1	Road Cross Sections		13 March 2024
Reports / documents
3	Additional Geotechnical Investigation and Slope Stability Assessment Report 20478/1-AA Amended 2		Geotechnique Pty Ltd	7 March 2024
4	Arboriculture Impact Assessment Report (Ref: BATH70AIA)		Travers Bushfire & Ecology	15 March 2024
5	Biodiversity Development Assessment Report (Ref: 18BATH70)		Travers Bushfire & Ecology	15 March 2024

2. The amended DA was filed with the Court on 18 March 2024.

29. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or as assessed, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Deferred development consent is granted to development application No. 872/2023/ZA as amended, for the demolition of existing structures, construction of a private road, retaining wall and civil engineering works and subdivision of land to create six Community Title lots on land legally described as Lot G in DP367326 and known as 14 Telfer Road, Castle Hill NSW 2154, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Amendments

23 April 2024 - Pursuant to UCPR r 36.17, the correct Annexure A is uploaded.

Decision last updated: 23 April 2024