Kerr v Hornsby Shire Council

[2019] NSWLEC 1138

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kerr v Hornsby Shire Council [2019] NSWLEC 1138
Hearing dates:	15 March 2019
Date of orders:	09 April 2019
Decision date:	09 April 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are as follows: (1) The Applicant is granted leave to amend the development application and rely on the plan entitled “Plan of Proposed Accessway Location for D.A. 1485/2016 for Lot 5 in D.P. 563935 103A Copeland Road - Beecroft”, Plan No. S.15432H, prepared by P.S Graham & Associates dated 22 January 2019. (2) The appeal is upheld. (3) Development Application No. DA/1485/2016 for the demolition of existing pool, Torrens title subdivision of one lot into two lots and reconstruction of an existing access handle in respect of the land at 103A Copeland Road, Beecroft (Lot 5 DP 563935) is approved subject to the conditions in Annexure “A”. (4) The exhibits, except for Exhibits 1, 7, B, D and G are returned.
Catchwords:	DEVELOPMENT APPLICATION: dual occupancy; consent orders; reciprocal rights of carriage way; owners consent; flood management; tree preservation.
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Environmental Protection and Assessment Regulation 2000 Hornsby Local Environment Plan 2013 Land and Environment Court Act 1979 Sydney Regional Environmental Plan – Sydney Harbour Catchment 2005
Texts Cited:	Hornsby Development Control Plan 2013 Practice Note - Class 1 Development Appeals
Category:	Principal judgment
Parties:	Christopher Anthony Kerr (First Applicant) Monika Marie Kerr (Second Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: J Reid (Applicants)   Solicitors: Etheringtons Solicitors (Applicants) J McCullan, Marsdens Law Group (Respondent)
File Number(s):	2018/212225
Publication restriction:	No

JudgEment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 1485/2016 by Hornsby Shire Council (the Council) for demolition of a pool and Torrens title subdivision of one lot into two lots, with reconstruction of an existing access handle, on Lot 5 DP 563935, also known as 103A Copeland Road, Beecroft (the site).

Background

2. DA 1485/2016 was submitted to Council on 6 December 2016, and following notification, four written objections were received.

3. After submission of further supporting documentation by the applicant, Council formally refused the DA on 9 December 2018.

4. The applicant sought a review of the decision to refuse the DA, pursuant to s 8.2(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act), which is as yet undetermined by Council.

5. The applicant subsequently appealed against the refusal of DA 1485/2016, pursuant to s 8.7(1) of the EPA Act.

6. The Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (the Court Act), which commenced as a site view on 22 January 2019. A total of two residents spoke on issues that included: privacy; flooding; and access.

7. As the parties were unable to reach an agreement, pursuant to s 34(4)(b) of the Court Act, the conciliation was terminated and the hearing of the appeal was set down at the parties request before myself, as presiding Commissioner of the conciliation.

8. At the termination of the conciliation, the parties agreed that the contentions raised in the Statement of Facts and Contentions (SoFC), dated 4 October 2018 were substantially resolved, based on the amended plans and supporting documents relied on in this appeal. However, no agreement could be made by the parties, as further amendment to the access (handle)driveway design was required, and the provision of owners consent from 105 Copeland Road for the development application was still outstanding.

9. Owners consent from 105 Copeland Road was obtained on 22 January 2019 and is tendered in evidence as Exhibit D.

10. Leave was granted by the Court, at the parties request to amend the development application to delete tree removal, and rely on amended ‘accessway’ plans, tendered as Exhibit B.

11. Therefore, as the contentions and jurisdictional issues are resolved, the parties seek for the appeal to be determined through consent orders. A signed version of the amended consent orders with agreed conditions was filed with the Court on 25 March 2019, which replaces Exhibit A, with leave granted by the Court.

12. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and whether it is appropriate for the Court to grant consent. I am also required to consider the evidence and submissions of the residents. The Practice Note - Class 1 Development Appeals (Practice Note) sets out the procedural requirements at [99]:

“[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.”

13. The parties agree to rely on observations and information obtained from the conciliation, in addition to evidence and submissions tendered at the hearing.

14. The Court had submissions from two residents at the hearing, one of which was represented by legal counsel. The owners of 105 Copeland Road were represented by Mr Schapiro in oral submission, with reference made to a written submission (Ex 10) by the residents with suggested amendments to the draft conditions.

15. The owner of 44 Hannah Street supported his oral submission with a written submission, tendered as Exhibit 9.

16. These oral/written submissions provided in the hearing were consistent with the written submissions made by these and other (2) residents in response to the various notification periods that relate to this DA, including the consent orders.

17. The Court has granted leave to rely on various versions of amended plans and documents submitted in resolution of this appeal, and further grants leave to rely on the most recent versions of supporting documents tendered in evidence in Exhibits B and D, upon which the consent orders rely. The amendments are made consistent with s 8.15(3) of the EPA Act. 

The Site

18. The site is a battle-axe subdivision, well setback from Copeland Road, an unclassified road. The site is connected to this road via an access handle currently and proposed to be used as a driveway and pedestrian assessway, which is approximately 3.66 m in width and 42 m in length. The access handle is currently constructed of two concrete strips, which form the boundary between the two lots (103A and 105 Copeland Road) that have reciprocal rights of carriageway.

19. The site, including the access handle, has a fall towards the south. Along the western margin of the access handle is a grassed area with several large trees, which form part of the Blue Gum High Forest, a critically endangered ecological community. Along the north-eastern margin of the access handle are newly planted Lilli Pilli trees and sparsely landscaped soil in the south-eastern portion.

20. The site currently has a two storey dwelling in the eastern portion of the site and a large area of landscaping with a pool on the western portion of the site.

21. The site is located within the Beecroft-Cheltenham Heritage Conservation Area.

The proposal under appeal

22. The DA proposes demolition of an existing pool, Torres title subdivision of the site into two lots (to be known as Lots 11 and Lot 12), and modification works to the existing access handle, that links the site to Copeland Road.

23. The DA relies on the access(way) handle, which is shared and has a reciprocal right of carriageway with Lot 4 DP 563935, also known as 105 Copeland Road, Beecroft.

24. The DA seeks to modify the access handle by concreting along its length, and extending to a width of 3 m. The concreted section is positioned from the central to eastern boundary of the access handle within the designated right of carriageway. The area along the western margin of the access handle will remain grassed to protect the existing trees, except at the extreme ends, close to the road and entry to the site, which will be concreted boundary to boundary to provide for a passing bay and ease of access.

25. The contentions and jurisdictional issues that the Court must be satisfied to grant approval of the DA include:

1. Owners consent as it relates to modification of the access handle,

2. Flood management, and

3. Tree preservation, protection and maintenance.

26. The Court is also required to consider submissions made by residents in the hearing, and I will specifically address the suggested amendments to the conditions as proposed by the residents of 105 Copeland Road.

Relevant Planning Controls and Requirements

27. Schedule 8, Pt 1 of the Conveyancying Act 1919 No 6 (Conveyancying Act) which relates to the right of carriage way, is a relevant consideration for the works proposed in the access handle:

Part 1 Right of carriage way

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.

28. A development application must be made by the owner of the land to which the development applies, and where other land is relied upon, owners consent is required, as established in cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) below:

49 Persons who can make development applications

(1) A development application may be made:

(a) by the owner of the land to which the development application relates, or

(b) by any other person, with the consent in writing of the owner of that land.

29. As the development relies on works located in an easement along the access handle, which is a reciprocal right of carriageway between two lots, pursuant to cl 50(1)(a) of the EPA Reg, evidence of owner’s consent must be provided as described Pt 1 of Sch 1 as follows:

1 Information to be included in development application

…

...

(i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner’s consent is required by this Regulation,

...

30. The site is located within an R2 Low Density Residential zone, as identified in the Hornsby Local Environmental Plan 2013 (HLEP). Of relevance in consideration of this DA are the following clauses: cl 2.3 as it relates to zone objectives; cl 2.6 subdivision; cl 4.1 subdivision lot size; cl 5.10 heritage conservation; and cl 6.3 flood planning.

31. The following requirements of the HLEP are satisfied and require no further assessment:

1. The proposed subdivision is permissible with consent in this zone, pursuant to cl 2.3.

2. The existing lot has an area of 1378 m², which after subdivision results in lot sizes of 717.2 m² and 835.8 m², and therefore complies with the requirements of cll 2.6 and 4.1.

3. The site is located within a heritage conservation area. The subdivision is considered in character and will not have effect on the nearby conservation area significance, thereby satisfies cl 5.10(4).

32. The relevant sections of the Hornsby Development Control Plan 2013 (HDCP) that are satisfied by the proposed development include those in: Part 3 (landscaping); Part 6 (subdivision); and Part 9 (heritage).

33. The site is located within the Sydney Regional Environmental Plan boundary, and therefore subject to the Sydney Regional Environmental Plan – Sydney Harbour Catchment 2005 (SREP). The proposed subdivision, which seeks to gravity drain stormwater from the site, is consistent with the planning principles as set out in the SREP.

Provision of owners consent for works along the access handle

34. The access handle is proposed to be modified as part of the DA, and forms part of a shared right of carriageway, pursuant to Sch 8, Pt 1 of the Conveyancying Act. Therefore, pursuant to cl 49(1) of the EPA Reg, owners consent from 105 Copeland Road is required for the application of the DA as it proposes works in the access handle.

35. Owners consent for the DA was provided by letter dated 22 January 2019 (Ex D), and I find which satisfies cl 49(1)(b) of the EPA Reg. It is provided as supporting documentation to the DA, consistent with Pt 1 of Sch 1, and satisfies cl 50(1)(a) of the EPA Reg.

36. Therefore, the jurisdictional requirement of owners consent for works in the access handle is resolved, and I am satisfied that there is no jurisdictional impediment, as it relates to owners consent, for the Court to grant consent to this DA.

Tree preservation, protection and management satisfied

37. This contention relates to the preservation and protection of the stand of trees identified as being part of the Blue Gum High Forest, a critically endangered ecological community, located along the western boundary of the access handle.

38. The applicant accepted prior to the conciliation that these trees should not be removed. The Court has granted leave to amend the development application to delete tree removal, as it relates to this stand of trees. Protection and management of this tree species, in this location is dealt with by way of conditions of consent, pursuant to s 4.15(1)( a) of the EPA Act.

39. To protect these trees during construction of the access handle and throughout its operation, the parties accept the recommendations made in the Arboriculturist report, dated February 2017 and Tree Management Plan, dated November 2018, to protect the tree protection zone (TPZ). The driveway within the access handle has been designed to restrict, by way of condition, excavation in areas where it may affect the TPZ, and which is shown in the location of accessway plan, Exhibit B.

40. I am therefore satisfied that by retaining (preserving) the relevant trees identified along the access handle and having the proposed driveway designed and constructed in a way to protect the TPZ of these trees (addressing protection and management), the relevant plans and conditions (including conditions 3, 13, 14, 25, 26, 28 and 37) satisfactorily address this contention, and there is no inconsistency with the relevant statutory controls.

Flood planning satisfied

41. With regards to addressing the potential for flooding on the site, the parties accept the flooding report, dated November 2018, tendered in Exhibit D. This report identified that the subdivision and proposed stormwater management system as designed does not result in any change to existing flood levels or velocity that would increase the risk (impact) to the site or neighbouring properties. The report assessed the site as being within a low flood hazard zone, which will not change as a result of the proposed subdivision.

42. The registered plan for the site (Ex 7) indicates that the access handle is burdened by an easement to drain water along its western boundary. Oral submission of the resident in Hannah Street, explained that he understood that this easement for drainage currently benefits up to 8 (upgradient) properties including on adjoining lots to the north of the site, being 39, 39A, 37 and 37A Hannah Street, Beecroft.

43. Ms Reid noted that the title deeds for the site (Ex 7), pursuant to s 88B of the Conveyancing Act 1919, do not identify the site as being burdened with regards to stormwater management from other properties. She explained that there was insufficient information at hand to address the concern raised by the resident that up to 8 properties currently rely/access the existing stormwater system through the site, nor the possible discrepancy with the registered plan.

44. I however consider that should there be any discrepancy in the registration of the easement on title, it does not prevent the Court from granting approval for the DA. The proposed subdivision has dealt, to my satsifaction with stormwater and flood management to the effect of no additional offsite or onsite impacts.

45. I accept the results of the flooding report which suggest that the site is currently and will continue, after subdivision, to be subjected to a low hazard of flooding. I also accept that there are no further adverse impacts as a result of the proposed subdivision, either internally or offsite.

46. I do not have any evidence before me that identifies the number of properties that currently access the stormwater system through the site, however I am satisfied that based on the evidence of the applicants engineering expert that the flood model has considered both overland and directed stormwater flow from upgradient of the site (i.e. that flows onto the site), and has therefore considered any potential contribution from other properties that rely on this system.

47. I am satisfied that the proposed stormwater management system, together with the proposed conditions of consent, are capable of providing a system that does not result in any additional adverse flood impacts due to the subdivision, and therefore addresses the contentions of Council and concerns raised by the residents. I find that the objectives of cl 6.3 of the HLEP and relevant controls in the HDCP are satisfied.

48. I am also satisfied, that should it be proven otherwise, and an easement does exist that burdens the site for the drainage of water, the proposed subdivision is not inconsistent with the requirements of Pt 3 of Sch 8 of the Conveyancing Act:

Part 3 Easement to drain water

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, from time to time and at all times to drain water (whether rain, storm, spring, soakage, or seepage water) in any quantities across and through the land herein indicated as the servient tenement, together with the right to use, for the purposes of the easement, any line of pipes already laid within the servient tenement for the purpose of draining water or any pipe or pipes in replacement or in substitution therefor and where no such line of pipes exists, to lay, place and maintain a line of pipes of sufficient internal diameter beneath or upon the surface of the servient tenement, and together with the right for the grantee and every person authorised by the grantee, with any tools, implements, or machinery, necessary for the purpose, to enter upon the servient tenement and to remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing, maintaining, or renewing such pipe line or any part thereof and for any of the aforesaid purposes to open the soil of the servient tenement to such extent as may be necessary provided that the grantee and the persons authorised by the grantee will take all reasonable precautions to ensure as little disturbance as possible to the surface of the servient tenement and will restore that surface as nearly as practicable to its original condition.

49. The parties agree, and I accept that any additional recommendations made in the flood report, not relevantly addressed by way of condition of consent in this DA, should be considered by any future development (DA) for the site.

Resident proposed amendments to (driveway design and access related) conditions

50. In response to the submission (Ex 10) from the resident of 105 Copeland Road, seeking changes to proposed conditions by the parties and specifically relating to modifications in the access handle, the following issues require the Court’s consideration: damage to footings of existing garage; new landscaping in the easement; access during construction; and fencing.

51. I accept the parties proposed conditions 6 and 31 as detailed below, and do not accept the suggested (resident) changes to these conditions. I find the proposed conditions are sufficient to address the concerns raised by the resident in their submission, including any potential impact to the garage footings, particularly as the parties agree that the driveway in this area will not be excavated to protect the TPZ, and will be at current access handle grade in this location.

“6.   Dilapidation Certificate Pre Construction

A pre-construction dilapidation report is to be submitted form a qualified structural engineer relating to the premises at Lot 4 DP 563935 No.105 Copeland Road (unless the owner of that premises refuses to allow access to the premises to carry out the report).

31.   Dilapidation report

A post-construction dilapidation report is to be submitted form a qualified structural engineer relating to the premises at Lot 4 DP 563935 No.105 Copeland Road (unless the owner of that premises refuses to allow access to the premises to carry out the report).”

52. The residents of 105 Copeland Road, acknowledge that new trees (Lilli Pilli’s) located along the eastern margin of the right of carriageway were planted: post refusal of this DA; after construction of a garage located on the boundary of the property; and are within the right of carriageway. The resident states that these plantings are required to protect for privacy and light ingress to their bedroom from cars travelling along the access handle. The resident sought to change proposed condition 3, whereby the applicant would pay for the cost of relocation of these plantings.

53. I do not agree to the burden of cost to be placed fully on the applicant to move these plantings, as these planting are new and located well within the right of carriageway. The resident should not have an expectation to retain these plantings as they were understood at the time of planting that this area was potentially subject to extension of the access handle and are not deemed necessary to protect for amenity impacts. Therefore, I agree to the proposed condition 3 below as provided by the parties;

“3.   Removal of Trees

a) This development consent permits the removal of tree(s) numbered 1, 2, 5, 6, 7, 8 and 22A as identified on S.15432F Plan of proposed subdivision, prepared by P.S Graham & associates, dated 10-11-16.

b) This development consent permits the pruning, or if the project arborist confirms in writing that it is necessary, removal of the immature lilly pilly shrubs on the eastern most boundary of the right of carriageway to the extent necessary to construct the driveway and maintain access along the driveway.

c) The removal of any other trees from the site requires separate approval by Council in accordance with Part 1B.6 Tree and Vegetation Preservation of the Hornsby Development Control Plan, 2013 (HDCP).”

54. I observed and heard onsite that the resident had commenced (although not completed) the construction of a 1.8 m high fence along their western boundary, to protect for privacy and light ingress into a bedroom. The respondent and resident were unable to confirm whether this was a condition of consent for the DA consent that relates to the construction of the garage. The resident has sought to change proposed condition 29, to provide for a retaining wall and 2.4 m fence to replace the existing, partially constructed fence and an adjoining existing retaining wall.

55. Both parties agree that ingress of light from rear/forward facing vehicles would not be an issue for the bedroom in 105 Copeland Road or that there would be any additional adverse privacy issues due to the proposed modification of the access handle.

56. My observation leads me to agree with the parties that due to the straightness of the driveway and height of the bedroom windows relative to the driveway, any activity along the access handle would not have any additional or unacceptable impact to the resident of 105 Copeland Road, as a result of the proposed development. Further to this, I consider the resident of 105 Copeland Road, has the right and capacity to utilise the driveway past the windows in question and up to their rear boundary, almost the full length of the access handle. I also consider that any light ingress to the bedroom window would likely come from vehicles turning into this property and not from access to the site.

57. I agree with the parties that due to the height of the highlight windows on the western wall of the garage, which has nil set back to the boundary, the garage will not be detrimentally impacted by the proposed modifications to the access handle. I do not agree with the resident that these windows would benefit from the location of the Lilli Pilli’s as they are located along a garage wall that is not used for living space and the windows are high enough to prevent any light spill from vehicles.

58. Although the parties do not accept any detrimental amenity impact to 105 Copeland Road from works on the access handle and that the fence is not necessary for this purpose, the applicant has stated that they would be agreeable, should the Court see fit to require it, to construct a lapped and capped fence in the current location and height along the western boundary of 105 Copeland Road; although not agreeable to reconstruct the existing retaining wall, which they say is fully on the neighbours land.

59. The parties and I agree that the works proposed by the resident, as shown in Annexure A of the proposed conditions of consent, are located within the TPZ for the trees that require protection along the access handle. I find that there is no evidence of assessment by the Arboculturists on the potential impact to these (protected) trees for the construction of a fence or a retaining wall in the suggested location, and therefore I am not satisfied that I have sufficient information to determinate that these works would not cause any detrimental impact to these trees.

60. I am not satisfied that the Court can agree to a condition that imposes the construction of the fence and retaining wall in a location that potentially impacts trees that require protection. I also agree with the parties that the retaining wall as proposed by the resident for reconstruction is located fully on this residents’ land and therefore is not part of the right of carriageway or would be impacted by the modifications to the access handle.

61. I therefore delete proposed condition 29 as follows:

“29.   Fencing along right of carriageway

a) A fence shall be erected on the edge of the right of carriageway, adjacent to the existing pool type fencing, to join the existing lapped and capped and painted fence at the front of 105 Copeland Road and to extend to the start of the internal driveway of 105 Copeland Road in the area marked on the plan annexed to these conditions and marked “A”.

b) The fence shall be of a similar height, material and paint colour to the existing lapped and capped fence.

Note: The parties note that condition 29 was agreed to in response to a request from the owners of 105 Copeland Road. The condition does not arise from impacts from the proposed development. No assessment of impacts on trees has been undertaken. The imposition of the condition is a matter for the Court.”

62. I am not satisfied that retaining the new Lilli Pilli plantings and the residents suggested modification to the width of the access handle is appropriate. I accept the parties’ expert advice that the width of the (concreted) driveway is consistent with the relevant Australian Standard for driveway design, as described in condition 10 below.

“10.   Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed, constructed and a Construction Certificate issued in accordance with Australian Standards AS2890.1, AS3727 and the following requirements:

a) Design levels at the front boundary shall be obtained from Council via a separate application for Crossing Levels. The levels, once provided, are to be used to design longsections for the proposed driveway.

b) The driveway be a rigid pavement. Longitudinal sections along both sides of the access driveway shall be submitted to the principal certifying authority in accordance with the relevant sections of AS 2890.1:2004;

c) The driveway grade must not exceed 25 percent and changes in grade must not exceed 8 percent per plan metre;

d) The driveway pavement be a minimum 3 metres wide, 0.15 metres thick reinforced concrete with SL72 steel reinforcing fabric and a 0.15 metre sub-base.

e) The pavement have a kerb to one side and a one-way cross fall with a minimum gradient of 2 percent and kerb inlets and pits constructed on grade and at low points;

f) The provision of safety rails where there is a level difference more than 0.3 metres and a 1:4 batter cannot be achieved.

g) In accordance with the approved plans, a minimum of 2 car spaces shall be provided for any dwelling proposed to remain with provision for turning to permit cars to egress in a forward direction;

h) Conduit for utility services including electricity, water, gas and telephone be provided. All existing overhead assets including electricity and telecommunications cabling shall be relocated underground at no cost to Council

i) A common turning area to service the proposed subdivision in accordance with Australian Standards AS 2890.1 to ensure vehicles can enter and leave the site in a forward direction. A right of access shall be created over the turning area to ensure access is maintained at all times.”

63. I do not accept the residents suggested changes to proposed condition 10, particularly to make the concrete portion of the driveway narrower to protect the Lilli Pilli’s, because: it would contravene an Australian Standard for the width of a driveway for a subdivision; these plantings are not necessary to protect privacy or amenity; the plantings are located within the right of carriageway; and the plantings do not contribute (significant trees) to the heritage context of the area. I also consider that condition 10 as proposed by the parties satisfactorily addresses the protection of utility services, should they be found in the area.

64. The resident’s suggested changes to condition 19, to ensure their access to their property and also a requirement to provide for a secure alternative parking arrangement during construction is unnecessary. I consider the resident of 105 Copeland Road has access to sufficient on-street parking immediately adjacent to their property and that any requirement for the securing of valuable equipment is the obligation of the property owner. Further to this, the residents work vehicle will likely be located offsite for the majority of the hours that construction is proposed to occur and therefore unlikely to be unduly impacted by construction works in the access handle.

65. I accept the parties proposed condition 19 as follows:

“19.   Construction Work Hours

All works on site, including demolition and earth works, must only occur between 7am and 5pm Monday to Saturday.

No work is to be undertaken on Sundays or public holidays.”

Consent Orders

66. The parties have relied on the following supporting documentation for this DA:

1. Plan of proposed accessway location, dated 22 January 2019;

2. Plan of proposed subdivision, dated 10 November 2016;

3. Flood study report, dated November 2018;

4. Arboricultural impact assessment report, dated 20 February 2017;

5. Tree Management Plan and Specifications, dated 14 November 2018;

6. Waste Management Plan, dated 1 December 2016; and

7. Owners consent from 105 Copeland Road, dated 22 January 2019.

67. Notwithstanding the parties’ agreement to consent orders in determining this matter, I have carefully considered the evidence and (resident)objections relevant to the DA under appeal, together with the submissions and my observations during the onsite view. Having carefully considered the information before me in evidence, I am satisfied in my assessment, pursuant to s 4.15 of the EPA Act, that DA 1485/2016 warrants approval.

68. I am required to: assess the evidence that the approval is lawful and appropriate; be satisfied that any objections have been properly taken into account; and confirm that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard. I am satisfied that these requirements are met and accordingly, consent is granted to the development in accordance with the consent orders signed by the parties (amended as Ex A) and subject to the conditions of consent annexed to this judgment.

Orders

69. Consequently, the orders of the Court are as follows:

1. The Applicant is granted leave to amend the development application and rely on the plan entitled “Plan of Proposed Accessway Location for D.A. 1485/2016 for Lot 5 in D.P. 563935 103A Copeland Road - Beecroft”, Plan No. S.15432H, prepared by P.S Graham & Associates dated 22 January 2019.

2. The appeal is upheld.

3. Development Application No. DA/1485/2016 for the demolition of existing pool, Torrens title subdivision of one lot into two lots and reconstruction of an existing access handle in respect of the land at 103A Copeland Road, Beecroft (Lot 5 DP 563935) is approved subject to the conditions in Annexure “A”.

4. The exhibits, except for Exhibits 1, 7, B, D and G are returned.

…………………….

Sarah Bish

Commissioner of the Court

Annexure A (286 KB, pdf)

**********

Decision last updated: 11 April 2019