Clark v Hawkesbury City Council

[2021] NSWLEC 1776

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Clark v Hawkesbury City Council [2021] NSWLEC 1776

Hearing dates:

Conciliation conference held on 14 December 2021

Date of orders:

20 December 2020

Decision date:

20 December 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development consent is granted to DA0507/19 (as amended) for the erection of a split storey dwelling at 22 Bunya Crescent, Bowen Mountain NSW 2753, subject to conditions in Annexure ‘’A”.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Hawkesbury Local Environmental Plan 2012

Land and Environment Court Act 1979, s 34AA

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River, cl 2

Texts Cited:

Hawkesbury Development Control Plan 2002

Category:

Principal judgment

Parties:

Jeremy Drew Clark (First Applicant)
Linda Michelle Clark (Second Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
L Finn (Solicitor) (Applicants)
P Hudson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers Pty Ltd (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2020/357825

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 0507/19 by the Hawkesbury City Council (hereafter the Council), which as amended, seeks the construction of a dwelling and tree removal on Lot 508 DP 210301, also known as 22 Bunya Crescent, Bowen Mountain (hereafter the site).

Background

2. The DA was submitted to Council on 19 November 2019 and was internally assessed, although is not yet determined.

3. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams.

5. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 0507/19, with conditions.

7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, to grant consent to DA 0507/19, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

8. Section 4.14 of the EPA Act establishes a requirement for consideration of relevant specifications relating to development on bushfire prone land. The amended DA is supported by a Bushfire Hazard Assessment Report and the conditions of consent address the required bushfire protection measures. The parties agree that the proposed siting and dwelling design have appropriately considered the context of the site to mitigate the risk from bushfire.

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court:

1. Hawkesbury Local Environmental Plan 2012 (HLEP):

1. The planning evidence is that the amended proposal is consistent with the aims and objectives of HLEP, and the objectives of the RU5 Village zone, within which the development is located. The proposed dwelling is permissible with consent in this zone, and has been sized, sited and designed to comply with the relevant development standards. The conditions of consent also address the relevant provisions.

2. Sydney Regional Environmental Plan No 20–Hawkesbury-Nepean River (SREP 20):

1. The site is subject to the provisions of the SREP 20, pursuant to cl 2. The parties agree that the amended proposal is consistent with the SREP 20, specifically cl 4(1), based on its amended design and siting.

3. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55):

1. The site is not listed on Council’s land contamination register and the amended proposal is otherwise consistent with SEPP 55, specifically cl 7(1). The site has consistently been vacant and surrounding developments are used for residential purposes, suggesting no source of contamination.

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

1. A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended DA.

5. Hawkesbury Development Control Plan 2002 (HDCP):

1. The relevant requirements of the HDCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The original proposed development and the amended design were publicly notified in accordance with the HDCP, and no submissions were received.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 0507/19 should be granted, as it satisfies the relevant requirements of ss 4.14 and 4.15 of the EPA Act.

13. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

14. The Court notes that:

1. The Council agrees, pursuant to cl 55(1) of the EPA Reg, to the Applicant amending DA0507/19 for the following plans and documents, and the Statement of Environmental Effects, prepared by Lance Doyle for 22 Bunya Crescent, Bowen Mountain (dated 12 November 2021):

Reference No.	Name	Issue No.	Date
1D	Site Plan	D	28/10/2021
2D	Upper Level Floor Plan	D	29/10/2021
3C	Lower Level Floor Plan	C	29/10/2021
4F	Elevations	F	28/10/2021
5D	Section & Driveway Section	D	28/09/2021
6A	Landscape Plan	A	21/09/2021
C00.01	General Notes	A	22/10/2021
C01.01	Sediment & Erosion Control Plan	A	22/10/2021
C01.02	Sediment & Erosion Control Details	A	22/10/2021
C02.01	Stormwater Drainage Plan	A	22/10/2021
C02.02	Stormwater Details Sheet 1	A	22/10/2021
C03.01	Driveway Layout Plan	A	22/10/2021
C03.02	Driveway Detail Sheet 1	A	22/10/2021
C03.03	Driveway Detail Sheet 2	A	22/10/2021
3480519	Colour & Material Schedule	-------------	Not Dated
Arboricultural Impact Assessment Report	-------------	9 April 2021
19.11.344	Bushfire Hazard Assessment Report	-------------	05/11/2019
1266007S	BASIX Certificate	-------------	08/12/21
21-005.A	Geotechnical Report	-------------	12/04/21

2. That the Applicant has uploaded the amended application and updated BASIX on the NSW Planning Portal (Portal) on 14 December 2021.

3. That the Applicant has subsequently filed the amended development application as lodged on the Portal with the Court on 14 December 2021.

15. The Court orders that:

1. The Appeal is upheld.

2. Development consent is granted to DA0507/19 (as amended) for the erection of a split storey dwelling at 22 Bunya Crescent, Bowen Mountain NSW 2753, subject to conditions in Annexure ‘’A”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (244933, pdf)

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Amendments

20 December 2021 - Pursuant to UCPR r 36.16, the Court amends the notation at [14] and the final orders of 20 December 2021.

Decision last updated: 20 December 2021