Centaran Holdings Pty Ltd v The Hills Shire Council

[2024] NSWLEC 1457

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Centaran Holdings Pty Ltd v The Hills Shire Council [2024] NSWLEC 1457

Hearing dates:

Conciliation conference on 22 July 2024

Date of orders:

02 August 2024

Decision date:

02 August 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The cl 4.6 requests for variations to the minimum subdivision lot size controls in cl 4.1AA and cl 4.1B of The Hills Local Environmental Plan 2019, prepared by GSA Planning dated October 2023, are upheld.

(2) The appeal is upheld.

(3) Development application No. 256/2023/HC for demolition of existing structures and construction of a small lot integrated housing development with subdivision for 27 residential Torrens title lots within a community scheme of detached dwellings, environmental protection area and associated works, at 582 and 582A Old Northern Road, Dural is determined by the grant of consent subject to the conditions set out in Annexure “A”.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016 ss 7.7, 7.13, 7.16

Environmental Planning and Assessment Act1979 ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Roads Act 1993

Rural Fires Act 1997 s 100B

Environmental Planning and Assessment Regulation 2021 ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.119

State Environmental Planning Policy Amendment (Water Catchments) 2022 s 6.65

The Hills Local Environmental Plan 2019, cll 4.1AA, 4.1B 4.4, 4.6, 5.10, 7.2

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Centaran Holdings Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/85236

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by The Hills Shire Council, of DA 256/2023/HC. This application seeks consent for the demolition of existing structures and the construction of a small lot integrated housing development, comprising 27 Torrens title lots within a Community Title scheme and a community lot containing environmental protection areas, roads and footpaths at 582 and 582A Old Northern Road, Dural, Lot 1 DP 656034 and Lot 2 DP 565718.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. This matter commenced as a hearing on 22 July 2024. At the commencement of proceedings, the parties indicated they have reached an agreement as to acceptable terms of a decision in the proceedings, and requested the matter be listed for a further conciliation conference. Subsequently, 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 also held on 22 July 2024. I presided over both the hearing and conciliation conference.

4. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the applicant amending the development application. These amendments principally included an amended bushfire report to address an inconsistency between the development as assessed by the NSW Rural Fire Service and biodiversity assessment requirements.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the landowner.

8. The application was notified in accordance with The Hills Development Control Plan 2012 between 10 August and 31 August 2022, during which time two submissions were received, with an additional submission received after the notification period. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. The subject site is zoned R3 Medium Density Residential under The Hills Local Environmental Plan 2019 (THLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Regarding the minimum subdivision lot size required under THLEP, as the development includes a community title subdivision, cl 4.1AA applies to the development and imposes a minimum subdivision lot size development standard of 700m². The development does not, for the most part, comply with this standard with all lot sizes less than 700m² except for the single Community Lot.

11. The applicant submits that cl 4.1B, which provides an exception to this minimum lot size development standard, applies to the development however the Council disagrees because, in their submission, the proposed development does not provide pedestrian access to each dwelling from the main street frontage, as required by cl 4.1B(4)(e).

12. To the extent that they are relevant, written requests to vary the minimum lot size development standard have been submitted for both cll 4.1AA and 4.1B, prepared by GSA Planning and dated October 2023, pursuant to THLEP cl 4.6. Clause 4.6 allows the applicant to request the contravention of a development standard through the submission of a written request. This request must demonstrate that compliance with the minimum lot size development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention.

13. With respect to the first written request to vary the ‘Minimum subdivision lot size for community title schemes’ development standard set by THLEP cl 4.1AA (the cl 4.1AA variation request), the application seeks to subdivide the land into 27 residential lots, all of which are less than the 700m² minimum lot size except for the Community Lot. Pursuant to THLEP cl 4.6, I am satisfied that:

1. The cl 4.1AA variation request demonstrates that compliance with the ‘Minimum subdivision lot size for community title schemes’ development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R3 medium Density Residential Zone and the development standard, notwithstanding the non-compliance.

2. The cl 4.1AA variation request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The subdivision form and layout are consistent with that which is contemplated in the Site Specific Development Control Plan (Site Specific DCP). The proposed development results in better planning outcomes than those contemplated in the Site Specific DCP through the relative reduction in density, and the significant increase in retained bushland and trees.

2. The proposed development results in better planning outcomes than those contemplated in the Site Specific DCP through the relative reduction in density, and the significant increase in retained bushland and trees.

3. The subdivision and layout responds to and respects the environmental and biodiversity constraints applicable to the site, including the retention of remnant forest and other trees, and the identification and maintenance of a Biodiversity and Environmental Protection Area.

3. The cl 4.1AA variation request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

14. With respect to the second written request to vary the ‘Exceptions to minimum lot sizes for certain residential development’ standard set by THLEP cl 4.1B (the cl 4.1B variation request), the variation requested is in two parts which both pertain to cl 4.1B (3)(b). Firstly, the applicant seeks to provide a community lot that does not support a dwelling, but instead supports an environmental protection area, landscaped buffers, roadways, parking and pathways. Secondly, the development would be delivered in three stages, meaning the approved dwellings would not all be delivered at the same stage as subdivision. Pursuant to THLEP cl 4.6, I am satisfied that:

1. The cl 4.1B variation request demonstrates that compliance with the ‘Exceptions to minimum lot sizes for certain residential development’ standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R3 medium Density Residential Zone and the development standard, notwithstanding the non-compliance.

2. The cl 4.1B variation request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The Community Lot, while not supporting a dwelling, is an essential component of a functional and environmentally responsive development, as it supports essential access and required environmental protection areas. Inclusion of this lot provides for the orderly and economic development of the land.

2. All lots except for the Community Lot will provide a dwelling, as required by cl 4.1B (3)(b).

3. The proposed development results in better planning outcomes than those contemplated in the Site Specific DCP through the relative reduction in density, and the significant increase in retained bushland and trees.

3. The cl 4.1B variation request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

15. Pursuant to THLEP cl 4.3, a maximum building height of 10m applies to the subject site, with which the proposed development complies.

16. No floor space ratio development standard applies pursuant to THLEP cl 4.4.

17. The site is located adjacent to a local heritage item, A12 Old Northern Road between Dural and Wiseman’s Ferry. Pursuant to THLEP cl 5.10, based on the assessment contained in the Statement of Environmental Effects by GSA Planning dated July 2022 (SEE), the Heritage Impact Statement by Urbis dated 14 June 2022, and the Historical Archaeological Impact Assessment by Urbis dated 9 June 2022, I accept that the proposed development is unlikely to impact the heritage values of this item.

18. The site is not mapped as containing, or being in proximity to, Acid Sulfate Soils. Additionally, the site is not identified as ‘Biodiversity’ on the Terrestrial Biodiversity Map.

19. Earthworks are proposed in the application, and THLEP cl 7.2 lists matters that must be considered by the consent authority before granting development consent. From the parties’ submission, and the information contained in the Bulk Earthworks Plan by Epicentre Consulting Engineers, dated 8 December 2022, I accept that these matters have been adequately considered and, subject to the relevant conditions of consent, that the objectives of cl 7.2 will be met.

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Preliminary Site Investigation by Aargus Pty Ltd, dated 8 June 2022, the Detailed Site investigation and Remediation Action Plan and the parties’ submission, I accept that the subject site can be made suitable for the intended use, subject to the implementation of the relevant conditions of consent.

21. Pursuant to the requirements of the State Environmental Planning Policy (Transport and Infrastructure) 2021, based on the parties’ submission and the information contained in the SEE, I accept that the proposed development will meet the requirements of s 2.119, particularly noting the site is accessed via Derriwong Road, not the adjacent, classified, Old Northern Road. Concurrence from Transport for New South Wales is not required for this development under this SEPP, and no application required under the Roads Act 1993.

22. Pursuant to s 7.7 of the Biodiversity Conservation Act 2016 (BC Act), as this site includes a threatened ecological community, the development application was accompanied by a Biodiversity Development Assessment Report (BDAR) prepared by Cumberland Ecology dated 30 October 2023. From the parties’ submission and the information contained in the BDAR, I accept that the likely impact of the proposed development on biodiversity values has been considered, and that the application as amended includes measures to avoid and minimise these impacts. The BDAR also proposes retirement of biodiversity offset credits, which is reflected in the agreed conditions of consent. From this and the accompanying Vegetation Management Plan, also by Cumberland Ecology dated 30 October 2023, I accept that the requirements of BC Act s 7.13 are met, and also that, pursuant to s 7.16, the proposed development will not have a serious and irreversible impact on biodiversity.

23. Pursuant to the savings provision in s 6.65(1) of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Amending SEPP), Ch 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. From the parties’ submission and the information contained in the SEE, I accept that the general planning considerations set out in s 9.4 and the specific planning policies and recommended strategies set out in s 9.5 have been considered. Accordingly, conditions relating to water management have been proposed in the agreed conditions of consent.

24. Under Div 4.8 of the EPA Act, the development application is integrated, and includes an application for a bush fire safety authority under s 100B of the Rural Fires Act 1997. Accordingly, general terms of approval (GTAs) were issued by the NSW Rural Fire Service on 27 September 2022 and further on 17 July 2024 in response to the amended application. These GTAs have been incorporated into the agreed conditions of consent.

25. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to s 27 of the EPA Reg. Compliance with the commitments within this certificate is further required through a condition of consent.

Conclusion

26. For these reasons, 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:

1. The Hills Shire Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application Development Application No. 256/2023/HC, in accordance with the below documentation:

1. Amended Bushfire Report prepared by Nathan Kearnes.

29. The Court orders:

1. The cl 4.6 requests for variations to the minimum subdivision lot size controls in cl 4.1AA and cl 4.1B of The Hills Local Environmental Plan 2019, prepared by GSA Planning dated October 2023, are upheld.

2. The appeal is upheld.

3. Development application No. 256/2023/HC for demolition of existing structures and construction of a small lot integrated housing development with subdivision for 27 residential Torrens title lots within a community scheme of detached dwellings, environmental protection area and associated works, at 582 and 582A Old Northern Road, Dural is determined by the grant of consent subject to the conditions set out in Annexure “A”.

E Washington

Acting Commissioner of the Court 

Annexure A

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Amendments

23 August 2024 - Pursuant to rule 36.17 (slip rule) of the UCPR 2005, amendments has been made to the Annexure A and this has been reuploaded with the judgment.

23 August 2024 - Amendment of date on front sheet

Decision last updated: 23 August 2024