D’Anastasi v The Hills Shire Council

[2020] NSWLEC 1579

Land and Environment Court

New South Wales

Medium Neutral Citation:

D’Anastasi v The Hills Shire Council [2020] NSWLEC 1579

Hearing dates:

Conciliation conference on 6 November 2020

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [14]

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

The Hills Local Environmental Plan 2019

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

The Hills Development Control Plan 2012

Department of Urban Affairs and Planning, Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy 1997

Category:

Principal judgment

Parties:

Charles D’Anastasi (First Applicant)
Saviour D’Anastasi (Second Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
T Hale SC (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Russo & Partners Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/212865

Publication restriction:

No

Judgment

1. COMMISSIONER: Charles and Saviour D’Anastasi (the Applicants) have appealed the deemed refusal by Randwick City Council (the Respondent) of their development application 943/2019/HA, made with the owners’ consent, seeking approval for the remediation of existing on-site fill and for the filling of a dam (the Proposed Development) at 25 Cattai Ridge Road, Glenorie (the Subject Site).

2. The original development application had also proposed that a portion of the dam that was located on an adjoining lot at 27-29 Cattai Ridge Road should also be filled, but the Applicant has sought leave to amend its application such that that component of the proposed works has been removed.

3. The Subject Site is zoned RU6 Transition under the provisions of The Hills Local Environmental Plan 2019 (THLEP), and the Applicant’s Proposed Development, which constitutes environmental protection works, is permissible with consent within this zone.

4. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 6 November 2020, and I presided over that conciliation conference.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy), and no site view was undertaken during the conference. No objectors sought to make submissions to the Court in relation to the appeal as part of the conciliation conference.

7. 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 consent to the Applicant’s development application, subject to conditions.

8. 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.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. pursuant to the provisions of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55):

1. the proposed remediation of fill on-site is “Category 1 remediation work” within the meaning of cl 9(d) of SEPP 55;

2. the Parties have confirmed, and I am satisfied, that the contaminated portions of the Subject Site, identified with a preliminary investigation of the land concerned, and carried out in accordance with the contaminated land planning guidelines, will be suitably remediated in accordance with the Remediation Action Plan prepared by Benviron Group dated 19 December 2019 and these works will be completed prior to the proposed filling of the dam;

3. the provisions of cl 7(1) of SEPP 55 have, therefore, been considered and the Parties submit, and I am satisfied, that the Subject Site will be be suitable for residential land use.

2. Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SEPP Hawkesbury-Nepean River) applies to the Subject Site, and Parties have confirmed, and I am satisfied, that:

1. the general planning considerations set out in cl 5 of SEPP Hawkesbury-Nepean River have been taken into consideration. In particular:

1. the Proposed Development is consistent with the aims of SEPP Hawkesbury-Nepean River;

2. the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy have been considered in relation to the Proposed Development;

3. there are no other feasible alternatives to meeting the needs of the development other than the Proposed Development; and

4. the relationship between the different impacts of the Proposed Development and the environment, and how those impacts will be addressed and monitored, have been considered.

2. the specific planning considerations set out in cl 6 of SEPP Hawkesbury-Nepean River have been taken into consideration and the proposed development is not inconsistent with any policy or strategy listed therein.

3. the Proposed Development is the subject of the provisions of THLEP, and the following are the jurisdictional considerations of relevance within that instrument:

1. regard has been given to the zone objectives, and the Parties confirm, and I am satisfied that, the Proposed Development satisfies the first and second objectives and is neutral to the third objective;

2. development consent for “earthworks” pursuant to cl 7.2 of THLEP is not required because the “earthworks” (being the fill) are ancillary to the “environmental protection works” for which consent is sought. Whilst the consent authority is not required to take into consideration the matters in cl 7.2(3) of THLEP before granting development consent, these matters have been addressed at paragraph 5.4 of the Applicant’s revised Statement of Environmental Effects dated 9 October 2020;

3. the Subject Site does not contain a heritage item and is not within a heritage conservation area. However, the Subject Site is in the vicinity of a locally listed heritage item, being a “house” (I92) located at 41 Cattai Ridge Road. The Respondent has confirmed, and I agree, that the Proposed Development will not have an adverse effect on the nearby heritage items and the provisions of cl 5.10 of THLEP are satisfied.

4. the parties have advised, and I am satisfied, that the Subject Site is not marked on:

1. the land reservation acquisition map (cl 5.1 of THLEP);

2. the acid sulfate soils map (cl 7.1 of THLEP);

3. the Foreshore Building Line Map, Landslide Risk Map, Urban Release Area Map, Key Sites Map (cll 7.5 and 7.6, and Pt 6 of THLEP)

4. the Applicant’s development application was notified in accordance with the requirements of the EP&A Act, the Environmental Planning and Assessment Regulation 2000 and the Hills Development Control Plan 2012. The Respondent confirmed that:

1. it had received one submission in response to notification from the adjoining neighbour at 25-27 Cattai Ridge Road, Glenorie, who had objected to the portion of the dam located on the Site being filled as they said that the water in the dam is being used for animals kept on their land and for their sprinkler.

2. it has considered the submission received from the neighbour at 25-27 Cattai Ridge Road and was of the view that adequate water will remain available following completion of the Proposed Development within that portion of the dam being retained on the neighbour’s adjoining lot.

10. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

11. I am further 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.

12. 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.

13. 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.

14. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely on the following amended plans and documents:

DRAWING NO.	DESCRIPTION	DRAWING NO	REVISION	DATE
18005	Proposed Site Plan	A03	C	02/03/2020
18005	Cross Sections 1	A04	D	07/07/2020
18005	Cross Sections 2	A05	D	07/07/2020
18005	Long Sections and Cross Sections	A06	D	07/07/2020
18005	Dam Wall Plan	C02	B	07/07/2020
DOCUMENT	PREPARED BY	REFERENCE	REVISION	DATE
Geotechnical Assessment	Assetgeoenviro	5992-G1	4 April 2020
Statement of Environmental Effects	ICR Design	B	8 October 2020

2. The Applicant is to pay the Respondent’s cost thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The Appeal is upheld.

4. Development Application 943/2019/HA for remediation works, construction of a retaining wall and filling of part of an existing unused dam on the land at 25 Cattai Ridge Road is approved subject to the conditions set out in Annexure “A” to this agreement.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (175347, pdf)

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Decision last updated: 25 November 2020