Jones v Hawkesbury City Council

[2023] NSWLEC 1477

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jones v Hawkesbury City Council [2023] NSWLEC 1477

Hearing dates:

Conciliation conference on 5 July 2023

Date of orders:

23 August 2023

Decision date:

23 August 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2000 with such payment to be made within 21 days of orders being made approving the application.

(2) The applicant’s written request prepared by Minto Planning Services dated 19 July 2023, pursuant to cl 4.6 of the Hawkesbury Local Environmental Plan 2012 (HLEP), to vary the subdivision development standard in cl 4.1B of the HLEP is upheld.

(3) The applicant’s written request prepared by Minto Planning Services dated 19 July 2023 pursuant to cl 4.6 of the HLEP 2012 to vary the subdivision development standard in cl 4.2B of the HLEP 2012 is upheld.

(4) The appeal is upheld.

(5) Development Application No. DA0333/21 for a two lot Torrens title subdivision at 127 Edwards Road, Richmond Lowlands, being legally described as Lot 13 DP 752032, is determined by the grant of consent, subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Hawkesbury Local Environmental Plan 2012, cll 2.6, 4.1, 4.2, 4.1B, 4.2B, 4.6, 5.21, 6.1, 6.4, 6.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, s 4.9, Ch 9, s 9.9

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, s 4.6

State Environmental Planning Policy (Resources and Energy) 2021, Ch 3, Sch 3

Category:

Principal judgment

Parties:

David Jones (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/54996

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA0333/21 (the DA) for the subdivision of the land located at 127 Edwards Road, Richmond Lowlands (the site) into two Torrens Title lots.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 July 2023. I presided over the conciliation conference, which commenced with a site inspection.

3. Agreement in principle was reached at the conciliation conference for a revision of the proposed subdivision to avoid encroachment on a mapped wetland area identified under Ch 9 Hawkesbury-Nepean River of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). Revised plans constituting an amendment to the DA (Amended Application) were submitted by the applicant and filed with the Court on 3 August 2023.

4. This decision by the parties involved the Court upholding the appeal and granting development consent to the DA subject to conditions.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

1. The DA for the site includes the written consent of the owner of the land;

2. The DA was notified by the respondent between 25 November and 9 December 2021. No submissions were received in response to that notification.

3. In relation to the provisions of the Hawkesbury Local Environmental Plan 2012 (HLEP):

1. The subject site is zoned RU2 Rural Landscape under the provisions of the HLEP; and

1. the proposed development is permissible pursuant to cl 2.6(1) of the HLEP;

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out, as the proposed subdivision is for a primary production purpose which will facilitate the cultivation of turf.

2. Pursuant to cl 4.1 of the HLEP in relation to minimum lot size, a development standard of a minimum lot size of 10 hectares (ha) is applicable to the site; and

1. the Amended Application proposes Lot 131 (which has an area of 8.3ha in contravention of this development standard) and Lot 132 (which has an area of 23.738ha in compliance with this development standard);

3. Clause 4.1B of the HLEP contains additional requirements for subdivision in certain rural, residential and conservation zones. As the site is zoned RU2 the proposed development is subject to the controls within this clause; and

1. As the site is below the flood planning level, the proposed development does not comply with cl 4.1B(2)(b) of the HLEP. In that proposed Lot 131 does not contain a suitable area for a dwelling house and an adequate sewerage management system;

2. The DA relies on the provisions of cl 4.6 of the HLEP to vary this development standard.

4. It is proposed to create Lot 131 pursuant to cl 4.2 of the HLEP, which permits the proposed subdivision of land into smaller lots if the land is to be subdivided for the purpose of primary production and the lot does not contain a dwelling house; and

1. Condition 5 of Annexure A requires the creation of a restrictive covenant prohibiting a dwelling on this lot and requiring the lot to be used for primary production;

5. As the site is zoned RU2 and is proposed to be subdivided pursuant to cll 4.1 and 4.2 of the HLEP, the proposed development is subject to the control within cl 4.2B of the HLEP, which states that consent cannot be granted unless “the consent authority is satisfied that there is an area of land on the lot that is above flood planning level and is sufficient for the erection of a dwelling house”; and

1. Proposed Lot 131 does not contain an area that is above the flood planning level in contravention of this standard. The development application relies upon the provision of cl 4.6 of the HLEP to vary this development standard;

6. the applicant has submitted two written requests pursuant to the provisions of cl 4.6 of the HLEP, prepared by Minto Planning Services dated 19 July 2023, seeking to vary the applicable development standards for subdivision requirements contained in cll 4.1B and 4.2B of the HLEP;

7. The parties advise, and I am satisfied, that the applicant’s cl 4.6 written requests are well founded and that the variation to the development standards for subdivision requirements contained in cll 4.1B and 4.2B of the HLEP is acceptable noting that:

1. As required under cl 4.6(3)(a) of HLEP, compliance with the subdivision development standards in cl 4.1B and 4.2B of the HLEP is unreasonable or unnecessary because the underlying objective or purpose of the standards are not relevant to the proposed development. The proposed Lot 131 is being created pursuant to cl 4.2 of the HLEP and it is a requirement of that clause that “a dwelling cannot be erected on such a lot”;

2. There are sufficient environmental planning grounds to justify contravening the development standards for subdivision requirements contained in cll 4.1B and 4.2B of the HLEP, as required under cl 4.6(3)(b) of the HLEP, for the following reasons:

• The proposed subdivision to create Lot 131 would allow for this land to be used exclusively for primary production;

• The proposed subdivision will ensure maintenance of the wetland area to be contained wholly within proposed Lot 132;

3. Approval of the proposed development will be in the public interest for the reasons provided above at [7(3)(g)(i)] and [7(3)(g)(ii)] and because the proposed development is consistent with the objectives for the development standards for subdivision requirements contained in cll 4.1B and 4.2B of the HLEP and for development within the RU2 zoning of the subject site for reasons provided within the applicant’s written requests, which I also adopt;

8. Clause 5.21 of the HLEP relates to flood planning applies to the site as it is significantly below the flood planning level. The parties advise that as the proposed development involves no physical alteration to the land or a change in use, it will have no impact on flood behaviour and the requirements of cl 5.21 are satisfied. The DA is accompanied by a flood evacuation plan which forms part of the development consent.

9. Clause 6.1(2) of the HLEP requires development consent for the carrying out of works described in the Table on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. Clause 6.1(3) prevents development consent from being granted under the clause for the carrying out of works unless an acid sulfate soils management plan has been prepared. The site is identified as being affected by both Classes 1 and 4 acid sulfate soils. However, no physical works are proposed and the parties advise that the clause is considered to be addressed on this basis;

10. Clause 6.4 of the HLEP applies to land identified as “Significant vegetation” or “Connectivity between significant vegetation” on the Terrestrial Biodiversity Map. The parties advise that the proposed Lot 131 does not include any land identified under cl 6.4 and the clause is satisfied on that basis.

11. Clause 6.7 of the HLEP requires that the consent authority be satisfied that various essential services are available. The parties advise that the site is serviced by a water supply, electricity supply and suitable road access is available. The site is not serviced by reticulated sewer, however the parties advise that such a utility is not essential for the proposed rural subdivision.

4. In relation to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), Ch 4 Koala Habitat Protection applies to the Hawkesbury Local Government Area. As the site is greater than one hectare in area and does not have an approved Koala plan of management, s 4.9(2) of the Biodiversity SEPP is applicable; and

1. The proposed subdivision involves no physical alteration to the land, nor would it segment an area containing koala use trees. The parties advise that the proposed development would have no impact on koalas or koala habitat; and that consent may be granted to the development application on that basis;

5. Also, in relation to the Biodiversity SEPP, the now repealed Ch 9 (Hawkesbury-Nepean River) applies to the proposed development through the savings provisions contained at s 6.65 of the Biodiversity SEPP. Under s 9.9(19) development consent is required for the subdivision of land in a mapped wetland area; and

1. The parties advise that the proposed subdivision, as amended, does now not propose subdivision within the mapped wetland area, and so the matters for consideration in s 9.9(19) do not arise;

6. In relation to the provisions of State Environmental Planning Policy (Resources and Energy) 2021 (Resources and Energy SEPP), Ch 3 – Extractive Industries in the Sydney Area is relevant to the assessment of the development application; and

1. The site is not in the vicinity of an extractive resource site identified in Sch 3 of the Resources and Energy SEPP;

2. The DA was referred to NSW Department of Regional NSW – Mining, Exploration and Geoscience – Geological Survey of NSW for comment having regard to development on the Richmond Lowlands. The parties advise that the response confirmed that there were no issues or concerns with the proposal.

7. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP):

1. Pursuant to Ch 2, a portion of the site fronting the Hawkesbury River is identified as a “coastal use area” and “coastal environment area”. As such the considerations in s 2.10 and s 2.11 are relevant to the assessment of the DA; and

1. The parties advise that the proposed line of subdivision to create the two proposed lots is now not within these nominated areas;

2. Section 4.6 of the Resilience SEPP relates to the contamination and remediation of land. Section 4.6(2) of the Resilience SEPP requires the submission of a report specifying the findings of a preliminary investigation of the land; and

1. The parties advise that the DA is accompanied by a Preliminary Site Investigation prepared by Martens and Associates dated October 2021, which concludes that the site is suitable for the proposed subdivision;

2. It is noted that no change of use is proposed for the site.

8. Having considered the advice of the parties provided above at [7], I am satisfied that:

1. The applicant’s DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been so satisfied; and

3. Approval of the proposed development is in the public interest.

9. Further, I am 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.

10. 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.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

12. The Court notes that:

1. Hawkesbury City Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the applicant amending Development Application No. DA0333/21 in accordance with the documents listed below (‘the amended development application’):

Plan name	Drawing Number	Prepared by	Dated
Amended Subdivision Plan
Site Plan, Site Analysis Plan (Subdivision)	528/1B	David Jones Building & Landscape Design	30 June 2023

Supporting Documentation
Flood Evacuation Plan
Written Request – Clause 4.1B	Minto Planning Services	19 July 2023
Written Request – Clause 4.2B	Minto Planning Services	19 July 2023

2. The amended development application was filed with the Court on 3 August 2023.

13. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2000 with such payment to be made within 21 days of orders being made approving the application.

2. The applicant’s written request prepared by Minto Planning Services dated 19 July 2023, pursuant to cl 4.6 of the Hawkesbury Local Environmental Plan 2012 (HLEP), to vary the subdivision development standard in cl 4.1B of the HLEP is upheld.

3. The applicant’s written request prepared by Minto Planning Services dated 19 July 2023 pursuant to cl 4.6 of the HLEP 2012 to vary the subdivision development standard in cl 4.2B of the HLEP 2012 is upheld.

4. The appeal is upheld.

5. Development Application No. DA0333/21 for a two lot Torrens title subdivision at 127 Edwards Road, Richmond Lowlands, being legally described as Lot 13 DP 752032, is determined by the grant of consent, subject to conditions contained in Annexure ‘A’.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A (148904, pdf)

**********

Decision last updated: 23 August 2023