Flaherty v Hawkesbury City Council

[2020] NSWLEC 1449

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Flaherty v Hawkesbury City Council [2020] NSWLEC 1449

Hearing dates:

Conciliation conference on 23 June 2020, 1 July 2020, 3 July 2020, 29 July 2020, 20 August 2020 and 28 August 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted to the applicant to rely on the amended plans and documents referred to in Condition 1 of the conditions annexed and marked “A”.

(2) The Applicant is ordered to pay the First Respondent’s costs “thrown away” as a result of the amended development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1,500.00.

(3) The appeal is upheld.

(4) Development Application No. 0498/18 for tree removal, demolition of existing structures, removal of three dams, bulk earthworks, construction and interpretation of two dams as permanent waterbodies, alterations to Grose Vale Road, construction of roads and drainage and a staged Torrens title subdivision to create 254 residential lots, four open space lots and a residue lot at Lot 548 DP 1233056, being 382 Grose Vale Road North Richmond, is approved subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – state heritage item – subdivision of land in urban release area – heritage conservation – agreement between the parties – conciliation conference – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Hawkesbury Local Environmental Plan 2012

Heritage Act 1977

Rural Fires Act 1997

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

Water Management Act 2000

Category:

Principal judgment

Parties:

Andrew Flaherty (Applicant)
Hawkesbury City Council (First Respondent)
Heritage Council of New South Wales (Second Respondent)

Representation:

Counsel:
L Cone (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (First Respondent)
J Reid (Second Respondent)

Solicitors:
Addisons (Applicant)
Marsdens Law Group (First Respondent)
Department of Planning, Industry and Environment
(Second Respondent)

File Number(s):

2019/200819

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Hawkesbury City Council (the Respondent) of Development Application No. DA0498/18 (the DA) seeking consent for tree removal, demolition of existing structure, removal of three dams, bulk earthworks, construction and interpretation of two dams as permanent waterbodies, alternations to Grose Vale Road, construction of roads and drainage and a staged Torrens title subdivision to create 254 residential lots, four open space lots and a residue lot at lot 548 in deposited plan 1233056 (the proposed development), being 382 Grose Vale Road, North Richmond (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 was held on 23 June 2020. I presided over the conciliation conference.

3. In proceedings prior to the conciliation conference, the Court granted the application for joinder brought by the Heritage Council of New South Wales (Heritage Council).

4. 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 conditional development consent to the development application, subject to the amendment of the proposal, and the drafting of certain conditions agreeable to the parties.

5. I adjourned the conciliation conference on a number of occasions to permit the amendment of the plans, and in order for the conditions to be settled and finally agreed.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 28 August 2020.

7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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. As the DA was lodged as integrated development pursuant to s 4.46 of the EPA Act, there are jurisdictional prerequisites in respect of the Heritage Act 1977, the Rural Fires Act 1997 and the Water Management Act 2000.

10. In respect of the approvals required of integrated development by s 4.46 of the EPA Act, I note the following:

1. The National Resources Access Regulator issued a controlled activity approval on 1 April 2019 in accordance with s 91 of the Water Management Act 2000.

2. The Rural Fire Service issued general terms of approval, and a bushfire safety authority on 12 February 2020 in accordance with s 100B of the Rural Fires Act 1997.

3. The Heritage Council issued general terms of approval on 27 August 2020 pursuant to s 58 of the Heritage Act 1977, and did so in accordance with s 63(3) of the Heritage Act 1977 which provides that approval may be issued where a heritage item is in danger. In this case, the Heritage Council consider the dams to be in danger in their current form and the interpretation proposed is an acceptable heritage outcome.

11. Additionally, there are jurisdictional prerequisites in respect of the Hawkesbury Local Environmental Plan 2012 (HLEP) and the State Environmental Planning Policy No 55—Remediation of Land.

12. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [20]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is within the R2 Low Density Residential zone as identified in the HLEP 2012, in which land may be subdivided with consent and wherein the objectives of the zone are as follows:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To protect the character of traditional residential development and streetscapes.

•  To ensure that new development retains and enhances that character.

•  To ensure that development is sympathetic to the natural environment and ecological processes of the area.

•  To enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale.

•  To ensure that water supply and sewage disposal on each resultant lot of a subdivision is provided to the satisfaction of the Council.

•  To ensure that development does not create unreasonable demands for the provision or extension of public amenities or services.

2. Clause 4.1 of the HLEP sets minimum lot sizes resulting from subdivision. I am satisfied that the lots resulting from the proposed subdivision are greater than the minimum lot size of 375m² shown in the Lot size map at subcl 4.1(2) of the HLEP.

3. I am also satisfied on the basis of the Secretary’s certificate dated 21 February 2020 that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in accordance with cl 5.13A of the HLEP.

4. Relatedly, I am also satisfied that, as the site is within the Urban Release area identified on the Urban Release Area Map Sheet - URA_008AA in the HLEP, adequate arrangements have been made to make public utility infrastructure available to the proposed development when it is required in accordance with cl 5.13B of the HLEP.

5. On the basis of the following documents, I am satisfied in respect of cl 6.2 of the HLEP that the earthworks required for the proposed development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land:

1. Proposed Civil Works plans prepared by J Wyndham Prince dated 6 August 2020.

2. Geotechnical Assessments for Dams 6, 7, 8 prepared by Geotechnique dated 22 August 2018.

3. Geotechnical Supervision and Testing Letter prepared by Geotech Testing Pty Ltd dated 19 December 2019.

4. ‘DA0498/18 – Southern Heights Development Application – Dam 13 Catchment’ (Reference No. Redbank Southern Heights DA – Dam 13 Catchment Letter) prepared by J Wyndham Prince dated 5 March 2020.

5. ‘Dam 6 – Impact Assessment Dam No 6 Removal’ (Reference No. 1793dam6a) prepared by Bio Engineered Solutions dated 18 August 2018.

6. ‘Dam 7 – Impact Assessment Dam No 7 Removal’ (Reference No. 1793dam7a) prepared by Bio Engineered Solutions dated 18 August 2018.

7. ‘Dam 8 – Impact Assessment Dam No 8 Removal’ (Reference No. 1793dam8a) prepared by Bio Engineered Solutions dated 18 August 2018.

8. Aboriginal Heritage Impact Permit C0002175 (commencement date 6 October 2016).

13. As the site is identified as a state heritage item SR No. 01826, cl 5.10 of the HLEP requires that the Heritage Council be notified of the DA (at subcl 5.10(9)(a)), and that any response from the Heritage Council be taken into consideration (at subcl 5.10(9)(b)). On the basis of the General Terms of Approval at [10(3)], I am satisfied that the requirements of cl 5.10 of the HLEP are met.

14. The site is identified on the Terrestrial Biodiversity Map at subcl 6.4(2) of the HLEP as having areas of ‘significant vegetation’ and ‘connectivity between significant vegetation’. On the basis of the following reports, I am satisfied in respect of those matters set out at subcl 6.4(3) of the HLEP:

1. ‘Southern Heights Biodiversity Assessment’ (Reference No. 1070 Southern Heights Biodiversity Assessment Final Report) prepared by Molino Stewart dated October 2018.

2. Additional Biodiversity Assessment Report – Flora and Fauna Compliance prepared by Molino Stewart dated 17 December 2019.

3. ‘Southern Heights Riparian Assessment’ (Reference No. 1070 Southern Heights Riparian Assessment Final) prepared by Molino Stewart dated October 2018.

4. Ecological Response: Flora and Fauna Report prepared by EcoLogical dated 18 December 2019.

15. On the basis of the following reports and documents, I am satisfied in accordance with cl 6.7 of the HLEP, that adequate arrangements have been made for services that are essential to the proposed development to be made available when required:

1. Proposed Civil Works plans prepared by J Wyndham Prince dated 6 August 2020.

2. Proposed Road Works plans prepared by J Wyndham Prince plotted 3 February 2020.

3. Traffic Impact Assessment prepared by SCT Consulting dated 15 August 2018.

4. Traffic Analysis - Initial analysis prepared by SCT Consulting dated 17 December 2019.

5. Traffic Analysis - Further Review prepared by SCT Consulting dated 21 February 2020.

16. On the basis of the Detailed Site Investigation prepared by ERM Services Australia Pty Ltd dated 17 December 2019, I am satisfied that the land will be made suitable for the purpose for which the development is proposed to be carried out in accordance with cl 7 of State Environmental Planning Policy No 55—Remediation of Land.

17. The proposed development is traffic generating development, as defined by Schedule 3 of the State Environmental Planning Policy (Infrastructure) 2007. I note from correspondence prepared by Transport for NSW dated 17 February 2020 that no objection is raised in respect of the proposed development.

18. 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.

19. 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.

20. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. Leave is granted to the applicant to rely on the amended plans and documents referred to in Condition 1 of the conditions annexed and marked “A”.

2. The Applicant is ordered to pay the First Respondent’s costs “thrown away” as a result of the amended development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1,500.00.

3. The appeal is upheld.

4. Development Application No. 0498/18 for tree removal, demolition of existing structures, removal of three dams, bulk earthworks, construction and interpretation of two dams as permanent waterbodies, alterations to Grose Vale Road, construction of roads and drainage and a staged Torrens title subdivision to create 254 residential lots, four open space lots and a residue lot at Lot 548 DP 1233056, being 382 Grose Vale Road North Richmond, is approved subject to the conditions set out in Annexure ‘A’.

……………………….

T Horton

Commissioner of the Court

Annexure A (1705426, pdf)

**********

Amendments

01 October 2020 - Pursuant to the Uniform Civil Procedure Rules 2005 r 36.17, the slip rule, by the request of the parties, and the Court’s own motion, amend Annexure A to include the General Terms of Approval referred to in condition 2(a), (b) and (c) of the Annexure as being “attached” and forming part of the consent.

13 October 2020 - Pursuant to the Uniform Civil Procedure Rules 2005 r 36.17, the slip rule, by the request of the parties, the Court amends page 1 of Annexure A to remove the word “Draft”, as the inclusion of this word is an error.

Decision last updated: 13 October 2020