Johnson Property Group v Hawkesbury City Council

[2019] NSWLEC 1587

Land and Environment Court

New South Wales

Medium Neutral Citation:	Johnson Property Group v Hawkesbury City Council [2019] NSWLEC 1587
Hearing dates:	Conciliation conference on 14 November 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [18] below
Catchwords:	DEVELOPMENT APPLICATION – dwelling house – bushfire risk – ecological conservation - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 44 - Koala Habitat State Environmental Planning Policy No 55 - Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited:	Hawkesbury Development Control Plan 2002
Category:	Principal judgment
Parties:	Johnson Property Group (Applicant) Hawkesbury City Council (Respondent)
Representation:	Counsel: C Gough (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Storey and Gough Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/70674
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 0474/18 by Hawkesbury City Council (hereafter the Council) for construction of a dwelling house, pool, fence and an attached garage on Lot 61 DP 1206587, also known as 43 Bootles Lane, Pitt Town (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 November 2019. I presided over the conciliation conference, which started in Court. At the request of the parties, no site inspection was undertaken. There were no objectors to the proposed development.

4. Prior the conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA. Based on these amended plans, together with the DA’s supporting documents 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 decision of the parties is to uphold the appeal and grant consent to DA 0474/18 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, 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 ss 4.14 and 4.15(1) to grant consent to DA 0474/18 with conditions, as described in Annexure A.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of ss 4.14 and 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55); State Environmental Planning Policy No 44 - Koala Habitat (SEPP 44); and Hawkesbury Local Environmental Plan 2012 (HLEP). In addition, the Hawkesbury Development Control Plan 2002 (HDCP) is of consideration to grant consent to the DA.

7. The parties agree that the requirements of s 4.14 of the EPA Act are satisfied by the proposed development, based on the bushfire assessment report, amended plans which designs the dwelling to a bushfire attack level (BAL) rating of 29 and establishes an Asset Protection Zone (APZ), and conditions of consent that are consistent with the requirements as specified by the NSW Rural Fire Service.

8. The requirements of SEPP 55 have been considered by the parties and they are satisfied, based on the report supporting the DA, that there is no contamination in the area of the proposed development.

9. The requirements of SEPP 44 are satisfied by the proposed Vegetation Management Plan (VMP) as a condition of consent, and the location of the dwelling with associated structures away from the endangered ecological community (EEC), which is also located on the (larger) site. The separation of the dwelling with associated structures, forming the residential portion of the site, from the EEC, by the construction of a permanent fence, to replace the temporary fence, is accepted as appropriate.

10. The proposed development is required to comply with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX Certificate No. 922597S, dated 11 October 2018, is identified in the conditions of consent.

11. The parties agree that the relevant provisions of the HLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within the RU2 rural landscape zone. The proposed development is permissible in the zone and is not inconsistent with the zone objectives.

12. The site is located within a heritage conservation area, although the parties agree that the proposed development satisfies cl 5.10 of the HELP. In addition, it is recognised that a large portion of the site is located below the Flood Planning Level (FPL), requiring the consideration of cl 6.3 of the HELP. However, the parties agree that the area of the dwelling, garage and pool are located on land that is above the FPL. Therefore, the requirements of cl 6.3 are satisfied.

13. The portion of the site that is mapped as EEC, which requires consideration of cl 6.4 of the HELP, is not impacted by the proposed development and the conditions of consent respond to management of vegetation to protect the EEC. The parties agree that the requirements of cl 6.4 are satisfied.

14. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the HDCP are achieved to the satisfaction of the parties. The parties agree that the requirements of the HDCP are complied with, considering the amended plans and conditions of consent. The proposed development was not required to be publicly notified pursuant to the HDCP.

15. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties.

16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 0474/18 should be granted, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act.

17. 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.

18. The Court orders:

1. The Applicant is granted leave to rely on the following amended plans and documentation:

Drawing Number/Name	Prepared by	Issue No.	Date
Drawing No A101 ‘Proposed Site Plan and BAL Overlay’	Doring Design	D	7 November 2019
Drawing No A102 ‘Proposed Floor Plan and Proposed Roof + Stormwater Plan’	Doring Design	D	7 November 2019
Drawing No A103 ‘West, South and North Elevations’	Doring Design	D	7 November 2019
Drawing No A104 ‘East Elevation and Section Plans’	Doring Design	D	7 November 2019
Drawing No A105 ‘Landscape Plan’	Doring Design	D	7 November 2019
Document	Prepared By	Issue No.	Date
‘Ecological Assessment’ Report	MJD Environmental	V4	20 September 2019
‘Typical Structure for a Vegetation Management Plan’	MJD Environmental	1 November 2019
‘Bushfire Threat Assessment’	MJD Environmental	V4	18 September 2019
‘Preliminary Site Assessment’	ERM	1.0	18 June 2019

2. The appeal is upheld.

3. Development Application No. DA0474/18 for the construction of a of a dwelling house with attached garage, swimming pool and fencing on the land at 43 Bootles Lane , Pitt Town is approved subject to the conditions of consent at Annexure “A”.

…………………………

S Bish

Commissioner of the Court

Annexure A (278 KB)

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Decision last updated: 03 December 2019