Hubbard v Hornsby Shire Council

[2022] NSWLEC 1345

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hubbard v Hornsby Shire Council [2022] NSWLEC 1345

Hearing dates:

Conciliation conference held on 24 May and 14 June 2022

Date of orders:

04 July 2022

Decision date:

04 July 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The Appeal is upheld

(2) Development Application DA/1203/2021 for the remediation of land legally described as Lot 1 DP 513823, known as 31-33 Calabash Road, Arcadia, is determined by the grant of consent, and subject to conditions set out in Annexure A

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.69, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49, 55

Hornsby Local Environmental Plan 2013, cl 2.3

Land and Environment Court Act 1979, s 34

Protection of the Environment Operations Act 1997, s 91

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 9.7, 9.9

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, cll 4.6, 4.7, 4.8

Texts Cited:

Hornsby Development Control Plan 2013

Category:

Principal judgment

Parties:

Patrizia Hubbard (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
MJ Astill (Applicant)
T Pickup (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
LGL Legal (Respondent)

File Number(s):

2022/51842

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) DA/1203/2021 by the Hornsby Shire Council (the Council), which seeks remediation works on Lot 1 DP 513823, known as 31-33 Calabash Road, Arcadia (the site).

Background

2. Part of the site is identified as being contaminated and the owner of the site was issued with a Clean-up Notice (153927) by the Environment Protection Authority (EPA), pursuant to s 91 of the Protection of the Environment Operations Act 1997 on 11 April 2016, to cease the contaminating activity. The Clean-up Notice was subsequently varied on a number of occasions to reflect the need to assess the extent of contamination, which now supports a remediation action plan (RAP).

3. The DA for remediation of the site was submitted to Council on 21 November 2021 and after internal review, was refused on 4 February 2022.

4. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference for the appeal, pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act), with an onsite view as requested by the parties, and thereafter conducted in person and by telephone.

6. Based on the amended DA, expert advice 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/1203/2021, 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 s 4.15, to grant consent to DA/1203/2021, subject to conditions described in Annexure ‘A’.

Jurisdictional prerequisites

8. Pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the applicant has satisfied the provision of written consent from all landowners for works proposed and relied on by the amended DA.

9. The parties confirm that the (retrospective) receiving of the waste is not the subject of the DA under appeal, pursuant to s 4.69 of the EPA Act.

10. 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 satisfied:

1. State Environmental Planning Policy (Biodiversity and Conservation 2021 (SEPP Biodiversity):

1. The site is located within the catchment of the Hawkesbury Nepean River, and therefore subject to the provisions of Pt 9 of the SEPP Biodiversity. The application sufficiently addresses the relevant provisions, as described in the Biodiversity SEPP, specifically ss 9.7 and 9.9(4).

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to cl 4.6 of the SEPP Resilience, the site must be deemed suitable, or can be made suitable for the proposed use, as assessed prior to grant of consent. Based on the supporting documents to the DA, the Court is satisfied that the applicant has provided sufficient evidence, including contamination assessment reports and a RAP, which are supported by the agreed conditions of consent, to address the requirements of cl 4.6 of the SEPP Resilience.

2. Pursuant to cl 4.7(1) of the SEPP Resilience, remediation work in accordance with Ch 4 is permissible, despite any provision to the contrary in any environmental planning instrument, except s 4.16(3) of the EPA Act. Pursuant to cl 4.7(2), (Category 1 as identified for the site) remediation work must be undertaken with consent.

3. Pursuant to cl 4.8(d) of the SEPP Resilience, Category 1 remediation works, as proposed on the site, requires development consent.

4. The site is subject to the provisions of Ch 9 of the SEPP Biodiversity. The DA relates to Category 1 remediation works, which satisfies the relevant provisions of the SEPP Resilience.

3. Hornsby Local Environmental Plan 2013 (HELP):

1. Pursuant to cl 2.3 of the HLEP, the site is zoned RU1 Primary Production and C3 Environmental Management, with the proposed remediation works situated over land zoned RU1.

2. Pursuant to cl 4.7 of the SEPP Resilience, the proposed remediation work is permissible irrespective of the land zoning. The application as described to the Court is therefore permissible with consent. The application is supported by appropriate documents, and sufficiently addresses all the relevant objectives, aims, standards and requirements of the HLEP.

4. Hornsby Development Control Plan 2013 (HDCP):

1. The relevant requirements of the HDCP are generally complied with, based on the plans and (amended) supporting documents to the DA and conditions of consent. The original DA was publicly notified in accordance with the HDCP and the Hornsby Community Engagement Plan, with no submissions were received by Council.

Grant of consent

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

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

13. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that consent to DA/1203/2021 should be granted, specifically as it satisfies the relevant requirements of s 4.15 of the EPA Act.

14. 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.

15. The Court notes that:

1. The Council, as the relevant consent authority, has agreed pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to amend Development Application DA/1203/2021, with the amended documents uploaded on the NSW Planning Portal on 30 June 2022.

2. The documents uploaded to the NSW Planning Portal, which amend the DA, were filed with the Court on 28 June 2022.

16. The Court orders:

1. The Appeal is upheld.

2. Development Application DA/1203/2021 for the remediation of land legally described as Lot 1 DP 513823, known as 31-33 Calabash Road, Arcadia, is determined by the grant of consent, and subject to conditions set out in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (255933, pdf)

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Decision last updated: 04 July 2022