Hatt Pty Ltd and Mararch Dev (Richmond) Pty. Ltd and Redbank Unit Trust and Wengor Dev (Richmond) Pty. Ltd trading as Redbank Communities v Hawkesbury City Council

[2019] NSWLEC 1528

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hatt Pty Ltd & Mararch Dev (Richmond) Pty. Ltd & Redbank Unit Trust & Wengor Dev (Richmond) Pty. Ltd trading as Redbank Communities v Hawkesbury City Council [2019] NSWLEC 1528
Hearing dates:	Conciliation conference on 30 August 2019; 18 October 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1)   Leave is granted to the applicant to rely on the amended plans and documents listed in Condition 1 under the heading “General Conditions” of the conditions annexed and marked “A”. (2) The applicant is to pay the Council’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $7,500 within 28 days of the date of the orders. (3)   The appeal is upheld. (4)   Development Application No. 0334/2018 for the construction of a café, function centre, town square, landscaping, car park, play area, private road and associated infrastructure at 86 Arthur Phillip Drive, North Richmond is approved subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – concept plan and Stage 1 application for neighbourhood centre – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 2012 Heritage Act 1977 Land and Environment Court Act 1979
Texts Cited:	Hawkesbury Development Control Plan 2002
Category:	Principal judgment
Parties:	Hatt Pty Ltd & Mararch Dev (Richmond) Pty. Ltd & Redbank Unit Trust & Wengor Dev (Richmond) Pty. Ltd trading as Redbank Communities (Applicant) Hawkesbury City Council (Respondent)
Representation:	Counsel: S Duggan SC (Applicant) P Hudson (Solicitor) (Respondent)   Solicitors: Addisons (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/89309
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Hatt Pty Ltd & Mararch Dev (Richmond) Pty. Ltd & Redbank Unit Trust & Wengor Dev (Richmond) Pty. Ltd trading as Redbank Communities (the applicant) lodged under s 8.7(1), of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Hawkesbury City Council (the Council) of Development Application DA0334/18 (the application).

2. The application is for development of Lot 92 in DP 1249265 being part of a larger site known as 382 Grose Vale Road, Richmond. It forms part of the ‘Redbank land release area’, or ‘Redbank Estate’, which will ultimately accommodate some 1400 dwellings and which has currently been developed for some 550 lots.

3. The Redbank Estate involves development of a property formerly known as ‘Yobarnie’ which is subject to a State heritage listing under the Heritage Act 1977 (the Heritage Act). Yobarnie is of heritage significance as it is where the Yeomans Keyline system of agriculture was first developed, trialled and demonstrated. A number of dams associated with this system are located on the property.

4. Lot 92 is a residue lot created in a previous subdivision and is proposed to contain a neighbourhood centre to serve the Redbank community. The address of the proposed centre is referred to as 86 Arthur Phillip Drive, North Richmond (the site).

5. The application, as lodged with the Council, sought consent for a concept development pursuant to s 4.22 of the EPA Act for the neighbourhood centre and also consent for the Stage 1 construction and use of a function centre, cafe, car park, play area, and private road as comprising the first stage of the neighbourhood centre.

6. The concept component comprised a Master Plan for the overall development of the neighbourhood centre. The centre is located to the north of an existing dam, known as Dam No. 13, and will be intersected by a private road. The northern section of the centre is to comprise various single and 2 storey commercial and retail buildings, and a car park. The southern section is to contain a 2 storey commercial building including underground car park, a single storey function centre and a cafe, playground and car park.

7. The southernmost area of the centre, adjoining the dam, was proposed in the application to comprise a boardwalk, amphitheatre and playground to be transferred to the Council.

8. The Council notified the application and four submissions of objection to the application were received. The main concerns raised were the relationship in the Master Plan shown between the neighbourhood centre and adjoining townhouses, noise from the function centre and cafe, traffic impacts, and inadequate access to the centre from an adjoining seniors’ housing development.

9. Given the site is listed as a State heritage item, the application was referred to the Office of Environment and Heritage (OEH) as ‘integrated development’ pursuant to s 57 of the Heritage Act. The OEH subsequently issued the Heritage Council’s general terms of approval (GTAs) for the development.

10. On 22 May 2019, the applicant filed the appeal against the deemed refusal of the application. On 30 May 2019, the Court granted Leave to the applicant to amend the application by way of amendments to the plans and documentation as filed with the Court.

11. In response, the Council filed a Statement of Facts and Contentions raising a series of contentions. The first was that part of the proposed development extended across zone boundaries into zones where the use was not permissible under the Hawkesbury Local Environmental Plan 2012 (the LEP).

12. Concern was also raised that the design of the proposed roads and on-street parking was not in accordance with the controls in the Hawkesbury Development Control Plan 2002 (the DCP) and that there would be insufficient parking provided to service the future neighbourhood centre at its full development and to ensure the safety of pedestrians. Specific concerns were raised with the concept application in terms of waste disposal, pedestrian access and the relationship with future open space. In terms of the Stage 1 application, the Council contended that insufficient information was provided in terms of heritage impacts, the land to be transferred to the Council, the amenity impacts of the function centre and café, and the adequacy of parking and waste arrangements.

13. Between 30 August 2019 and 18 October 2019, conciliation was held pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties.

14. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

16. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

17. It is therefore relevant, firstly, to note the details of the amended application the subject of the agreement.

18. The major change to the application was that it was amended to only comprise Stage 1 of the development with consent no longer sought for the overall concept plan. Therefore, the contentions and concerns raised with regard to the concept plan do not need to be resolved as part of the consent. Further, the parties came to an agreement in terms of the design and provision of the proposed roads, pedestrian access, waste collection and parking within Stage 1.

19. In terms of the pre-conditions to the granting of consent, the development is now confined to zones within the LEP where Stage 1 works are permissible with consent.

20. As part of the agreed conditions of consent, the GTAs sought by the Heritage Council have been imposed including the requirement for the preparation and submission to the Heritage Council of a detailed Heritage Interpretation Implementation Plan for the neighbourhood centre based on the recommendations of a Heritage Interpretation Strategy for the site prepared in 2016. Further, an application under s 60 of the Heritage Act must be submitted to and approved by the Heritage Council prior to work commencing.

21. The parties however, sought that the Court amend the Heritage Council GTAs to reference the amended drawings on which the conciliated consent is based and the updated Statement of Environmental Effects which similarly reflects the amended application the subject of the conciliated outcome, without further reference back to the Heritage Council. Whilst the Council does not have the power to amend the GTAs as sought by the parties without reference back to the Heritage Council, the Court does: s 39(6) of the LEC Act.

22. Having regard to the circumstances in terms of the amended GTAs agreed in the consent, being only to reflect updated plans and associated documents which do not propose to materially change the heritage significance of the site or the requirements in terms of heritage related documents and controls, and noting that the Heritage Council is still required to approve the proposed works, I consider it both lawful and appropriate to update the GTAs to reflect the latest version of documents to which the consent relates, as sought by the parties.

23. Given the agreement is lawful, I must make orders in accordance with it: s 34(3)(a). The amended condition as sought by the parties in terms of the GTAs is imposed accordingly but notes the GTAs have been amended (in terms of those provided to the Council) using the Court’s power at s 39(6), as requested by the parties.

24. The consent also includes agreed conditions on the dedication of open space and in terms of the design and documents required to ensure safe pedestrian and road networks and safe traffic management during construction. A number of conditions reference, and require compliance with, Chapter 8 of the DCP which is titled ‘Redbank at North Richmond’ and contains specific controls for development within the Redbank Estate.

25. Agreed conditions are also imposed restricting the hours of the restaurant and function centre with extended hours for a trial period initially to ensure there are no amenity impacts. There is also a restriction on the maximum number of patrons and to control noise associated with operation of these facilities.

26. On this basis, and having regard to the amendments undertaken to the application, I am satisfied that the relevant concerns raised by the objectors have been considered as part of the conciliated outcome.

27. Accordingly, the Court orders that:

1. Leave is granted to the applicant to rely on the amended plans and documents listed in Condition 1 under the heading “General Conditions” of the conditions annexed and marked “A”.

2. The applicant is to pay the Council’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $7,500 within 28 days of the date of the orders.

3. The appeal is upheld.

4. Development Application No. 0334/2018 for the construction of a café, function centre, town square, landscaping, car park, play area, private road and associated infrastructure at 86 Arthur Phillip Drive, North Richmond is approved subject to the conditions set out in Annexure “A”.

…………………………

Jenny Smithson

Commissioner of the Court

Annexure A (200 KB, pdf)

**********

Decision last updated: 01 November 2019