Comleroy Road Kurrajong Pty Ltd v Hawkesbury City Council

[2021] NSWLEC 1661

Land and Environment Court

New South Wales

Medium Neutral Citation:

Comleroy Road Kurrajong Pty Ltd v Hawkesbury City Council [2021] NSWLEC 1661

Hearing dates:

Conciliation conference on 22 October 2021

Date of orders:

29 October 2021

Decision date:

29 October 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court Orders:

(1) the Applicant is to pay the Respondents costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $6,000 within 28 days.

(2) the appeal is upheld;

(3) development application No. DA0250/20, seeking consent for the subdivision of Lot 58 in Deposited Plan 751658 (being the land commonly described as 816 Comleroy Road, Kurrajong NSW 2758) into four new Torrens title lots, is determined by the grant of consent subject to the conditions set out in Annexure 'A' to this agreement.

Catchwords:

DEVELOPMENT APPEAL – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Part 6

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

Environmental Planning and Assessment Regulation 2000, cl 55

Hawkesbury LEP 2012, cll 2.7, 4.1, 4.1B, 5.10, 6.1, 6.3, 6.7

Land and Environment Court Act 1979, s 34

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

Texts Cited:

Hawkesbury Development Control Plan 2002

Category:

Principal judgment

Parties:

Comleroy Road Kurrajong Pty Ltd
ACN 637884608 (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
K Mezinec (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/14659

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of a development application DA0250/20 seeking development consent for Torrens title subdivision into 4 lots (the Proposed Development) at 816 Comleroy Road, Kurrajong NSW legally described as Lot 58 in Deposited Plan 751658 (the Site).

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 has been held on 22 October 2021. I have presided over the conciliation conference.

3. At the conciliation conference, 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. The plans and supporting information for the Proposed Development were amended by the Applicant during the course of negotiations between the parties.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement annexed to the s 34 Agreement filed with the Court on 22 October 2021 and addressed these orally during the conciliation conference. The parties identified the jurisdictional prerequisites of relevance in these proceedings and give the following explanation as to how each jurisdictional prerequisite has been satisfied.

7. The Respondent has taken into consideration the relevant matters listed in s 4.15(1) of the EPA Act in deciding to enter into the section 34 Agreement.

8. As identified in the Statement of Facts and Contentions filed by the Respondent on 8 March 2021, a portion of the Site is mapped under the Biodiversity Values Map and Threshold Tool and Part 6 of the Biodiversity Conservation Act2016 requires the provision of a biodiversity development assessment report (BDAR). A BDAR has been submitted in support of the development application having regard to the clearing of vegetation required to facilitate the Asset Protection Zones on the site. The Respondent is satisfied that the development will not have an adverse impact on biodiversity values. The conditions of consent require the retirement of ecosystem credits prior to the issue of a Subdivision Certificate in accordance with the requirements of the BDAR.

9. The Hawkesbury Local Environmental Plan 2012 (HLEP) is the relevant local environmental planning instrument that applies to the Site and permits subdivision with development consent (cl 2.6).

10. The Site is zoned RU4 Primary Production Small Lots pursuant to the HLEP. Subdivision is permitted with consent in the RU4 zone.

11. The size of any lot resulting from subdivision must be not less than the minimum lot size identified under the Lot Size Map (cl 4.1(3), HLEP). The Lot Size Map shows that a minimum lot size of four hectares applies to the Site. Each of the proposed subdivided lots is greater than four hectares in size, and so this requirement is met.

12. Clause 4.1B of the HELP applies because the Site is zoned RU4 Primary Production Small Lots (cl 4.1B(1)(c)). Pursuant to cl 4.1B(2), the Respondent is satisfied, on the basis of the amended information provided as listed in paragraph [22(1)] that:

1. the pattern of lots created by the subdivision and the location of any buildings on those lots is not likely to have a significant impact on any threatened species, populations or endangered ecological community or regionally significant wetland, waterways, groundwater or agricultural activities in the locality (cl 4.1B(2)(a));

2. each lot to be created contains a suitable area for a dwelling house, an appropriate asset protection zone relating to bush fire hazard and an adequate sewage management system (cl 4.1B(2)(b));

3. the land is adequate for the on-site disposal of effluent (cl 4.1B(2)(c)); and

4. there is a satisfactory ratio between the depth of each lot and the frontage of each lot, having regard to the purpose for which the lot is to be used (cl 4.1B(2)(d)).

13. The parties have considered the other jurisdictional matters under the HLEP, and agree that the Proposed Development as amended by the documents in paragraph 5 is consistent with the relevant clauses in the HLEP as addressed below:

1. Clause 5.10(4) Heritage Significance – neither the property on the Site nor the Site is a heritage item nor is it within a heritage conservation area and there are no Aboriginal sites recorded or Aboriginal places declared in, near or above the Site;

2. Clause 6.1 Acid Sulfate Soils – the Site is not land to which this clause applies.

14. Clause 6.3 of the HELP deals with Flood Planning and the Site is not included in the relevant flood maps. The Respondent has considered the matters required by cl 6.4 of the HLEP, and is satisfied that the Biodiversity Assessment Report prepared by South East Environmental and dated July 2020 evidences that the development is designed, sited, and will be managed so as to avoid any significant adverse environmental impact in accordance with cl 6.4(4)(a) of the HLEP.

15. The Respondent is satisfied that the essential services listed in cl 6.7 of the HLEP are available or that adequate arrangements have been made to make them available when required.

16. The Respondent has considered the Preliminary Environmental Site Assessment prepared by Broadcrest Consulting Pty Ltd and dated July 2020, and is satisfied that the Site is not contaminated and is suitable for the Proposed Development in accordance with cl 7(1) of the State Environmental Planning Policy No. 55 – Remediation of Land. The Court notes that the Statement of Environmental Effects filed with the Class 1 Application confirms at paragraph 5.1.1 that a preliminary Environmental Site Assessment has been undertaken and concludes that the Site is considered suitable for the proposed rural residential subdivision.

17. The Respondent is satisfied that the Development Application as amended by the documents in paragraph 5 is acceptable on its merits having regard to the provisions of the Hawkesbury Development Control Plan 2002 and s 4.15(1)(a)(iii) of the EPA Act.

18. The parties agree that the Development Application as amended by the documents in paragraph [5] can be approved having regard to the matters in section 4.15(1)(b) – (e) of the EPA Act.

19. The submissions of objectors are a relevant consideration under section 4.15(1)(d) of the EPA Act. There were no objections received.

20. 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. I adopt the reasons given by the parties.

21. 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.

22. The Court notes:

1. that Hawkesbury City Council as the relevant consent authority has, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 consented to the following amendments to development application DA0250/20:

Reference	Description	Author	Date(s)
22786-P32	Plan of subdivision	Vince Morgan (Surveyors) Pty Ltd	18/08/2021
0529-GEO-A-01	Preliminary Dam Stability Assessment	Broadcrest Engineering and Environmental consultants	21/07/2021
2021-PR-35-0444	Traffic Impact and Parking Assessment Study	Traffic Engineering Centre Pty Ltd	22/07/2021
Bushfire Risk Assessment	Bushfire Planning Services	23/07/2021
110738-02-DA001	Site Layout Plan	J.Wyndham Prince Consulting Civil Infrastructure Engineers & Project Managers	23/07/2021
110738-02-DA002	Driveway Details	J.Wyndham Prince Consulting Civil Infrastructure Engineers & Project Managers	23/07/2021
Arborist Impact Assessment	McArdle Arboricultural Consultancy Pty Ltd	26/07/2021
Arboricultural Addendum to McArdle Arborist Report on Proposed design of Effluent area/disposal	McArdle Arboricultural Consultancy Pty Ltd	30/07/2021
Arboricultural Addendum to McArdle Arborist Report	McArdle Arboricultural Consultancy Pty Ltd	15 September 2021
0529-WW-A-04	Wastewater Management Report	Broadcrest Consulting Pty Ltd	29/07/2021
Biodiversity Development Assessment Report V5	South East Environmental	August 2021

2. the Applicant uploaded the amended application on the NSW planning portal on 21 October 2021;

3. the Applicant filed the amended application with the Court on 22 October 2021.

23. The Court Orders::

1. the Applicant is to pay the Respondents costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $6,000 within 28 days.

2. the appeal is upheld;

3. development application No. DA0250/20, seeking consent for the subdivision of Lot 58 in Deposited Plan 751658 (being the land commonly described as 816 Comleroy Road, Kurrajong NSW 2758) into four new Torrens title lots, is determined by the grant of consent subject to the conditions set out in Annexure 'A' to this agreement.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (308490, pdf)

Plan of Subdivision (603222, pdf)

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Decision last updated: 29 October 2021