KNGS Properties Pty Ltd v Hornsby Shire Council

[2023] NSWLEC 1648

Land and Environment Court

New South Wales

Medium Neutral Citation:

KNGS Properties Pty Ltd v Hornsby Shire Council [2023] NSWLEC 1648

Hearing dates:

Conciliation conference on 23 August 2023, final submissions 26 October 2023

Date of orders:

01 November 2023

Decision date:

01 November 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $6,000.

(2) The appeal is upheld.

(3) Development Application No DA/1368/2021, as amended, for the construction of a 91 place childcare centre with basement car parking for 23 cars and outdoor play areas, tree removal and associated landscape works on land legally described as Lot X in DP413605 and known as 59 Edwards Road, Wahroonga NSW 2076, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Hornsby Local Environmental Plan 2013, cl 2.3, 5.10

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, Pts 9.2, 9.3, s 6.65

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.16

State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 3, Pt 2.3, Div 15, ss 3.22, 2.99, 2.100

Category:

Principal judgment

Parties:

KNGS Properties Pty Ltd (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/135869

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA/1368/2021 (DA) by Hornsby Shire Council (Council). The DA seeks consent for the construction of a 91 place childcare centre with basement car parking, an outdoor play area, and associated tree removal and landscape works at 59 Edwards Road Wahroonga, legally identified as Lot X in DP 413605 (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held on 23 August 2023. I presided over the conciliation conference. The conciliation conference was followed by a series of further exchanges between the parties, culminating in the filing of an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, as amended. 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.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined matters of relevance through a jurisdictional statement provided to the Court on 25 October 2023, providing an explanation of how they believed relevant matters have or could be satisfied. Below, I attend to jurisdictional considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

5. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. The parties advise that s 4.6(2) is triggered and that the required site investigations have been undertaken, in relation to contamination, and that suitable conditions of consent are adopted in the parties’ agreement. I accept the advice of the parties that the requirements of s 4.6 are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

6. Chapter 2 Part 2.3 Division 15 applies as the site adjoins a railway corridor. The parties advise that s 2.99 is triggered as the proposal involves the penetration of ground to a depth of at least 2m below ground level (existing) on land within 25m (measured horizontally) of a rail corridor. Given its siting, s 2.100 also applies in relation to the consideration of rail noise or vibration. The parties advise that the DA was referred to Sydney Trains which raised no objections and provided concurrence conditions which have been referenced in the parties’ agreed conditions. The parties indicate that due consideration has been given to the matters raised within ss 2.99 and 2.100 and that the proposal has been designed to ensure that it does not impact on the safety or structural integrity of existing or proposed rail infrastructure facilities in the rail corridor or operations generally, and provides adequately for internal acoustic impact mitigation. I accept that the requirements of Ch 2 have been met.

7. Chapter 3 deals with child care facilities. Section 3.22 requires the concurrence of the Regulatory Authority prior to the granting of consent for a childcare centre if the criteria in s 3.22(1) is not met. In this instance, the parties agree that the proposal complies with these requirements which relate to indoor and outdoor unencumbered space requirements.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. Under s 6.65, the repealed provisions of former Ch 9 Hawkesbury-Nepean River continue to apply. The parties demonstrate how there has been due consideration to the requirements of Pts 9.2 and 9.3, where relevant, by referencing supportive documents accompanying the proposal. No jurisdictional breaches arise, insofar as the determination of the proposal is concerned, related to former Ch 9.

Hornsby Local Environmental Plan 2013

9. There is no dispute that the site is zoned R2 Low Density Residential and that the proposed development is permissible with consent under that zone. I have had regard to the zone objectives mindful of cl 2.3(2). I accept the advice of the parties that the proposal does not breach any development standards contained within this local environmental plan.

10. I am advised that the Edwards Road road reservation, including in the immediate site vicinity, is a local heritage item (No 743) related to its “street trees”. The parties advise that while the development includes some tree removal, it is limited and is not of the species type highlighted in Council’s Heritage Register in relation to the Edwards Road road reserve. While there are doubts about its applicability in the circumstances, requirements under cl 5.10(5) for consideration of the effect of the proposed development on the heritage significance of local heritage item No 743 have been met.

Other matters for consideration under section 4.15(1) of the EPA Act

11. The parties advise, relevant to s 4.15(1)(d), that the DA was notified and 70 objecting submissions were received. I also had the opportunity to hear from a number of objectors during the site inspection which preceded the conciliation conference. The parties have identified the range of issues raised in these objecting submissions and indicated to me that the issues raised have been taken into consideration and the parties are of the view that the amendments to the DA do satisfactorily address the issues raised.

12. I have also given attention to other provisions of s 4.15(1) and nothing turns on the provisions, jurisdictionally.

Conclusion

13. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. 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. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

15. The Court notes that the Respondent has consented, under former clause 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA/1368/2021 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. 01/16, Amendment 10	Title Page	Fyffe Design	10 July 2023
	Drawing No. 02/16, Amendment 10	Site Plan, Site Management Plan
	Drawing No. 03/16, Amendment 10	Site Analysis Plan
	Drawing No. 04/16, Amendment 10	Basement Floor
	Drawing No. 05/16, Amendment 10	Ground Floor
	Drawing No. 06/16, Amendment 10	Area Calculations
	Drawing No. 07/16, Amendment 10	Roof Plan		10 July 2023
	Drawing No. 08/16, Amendment 10	Elevations
	Drawing No. 09/16, Amendment 10	Elevations
	Drawing No. 10/16, Amendment 10	Sections A-A and B-B
	Drawing No. 11/16, Amendment 10	Sections C-C and D-D, Detail 1 Driveway Profile
	Drawing No. 12/16, Amendment 10	Shadow Diagram 21 June 9am
	Drawing No. 13/16, Amendment 10	Shadow Diagram 21 June 12pm
	Drawing No. 14/16, Amendment 10	Shadow Diagram 21 June 3pm
	Drawing No. 15/16, Amendment 10	External Finishes
	Drawing No. 16/16, Amendment 10	Notification Plan
Reports / documents
2	Environmental Impact Assessment (Report No. 7696-1.1R, Rev C)		Day Design Pty Ltd	24 July 2023
3	Operational Management Plan		–	5 August 2023
4	SOFAC Contamination Advice for 59 Edwards Road, Wahroonga NSW (REV0)		Steven Wallace, Sydney Environmental Group	7 July 2023
5	Supplementary Contamination Assessment Report (Report No. 9460-ER-1-3)		Alliance Geotechnical & Environmental Solutions	13 March 2023
6	Interim Asbestos Management Plan (Report No. 9460-ER-2-1)		Alliance Geotechnical & Environmental Solutions	31 March 2023
7	Remedial Action Plan (Report No. 9460-ER-1-2, Rev 3)		Alliance Geotechnical & Environmental Solutions	1 September 2023

Orders

16. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $6,000.

2. The appeal is upheld.

3. Development Application No DA/1368/2021, as amended, for the construction of a 91 place childcare centre with basement car parking for 23 cars and outdoor play areas, tree removal and associated landscape works on land legally described as Lot X in DP413605 and known as 59 Edwards Road, Wahroonga NSW 2076, is determined by the grant of development consent subject to the conditions at Annexure A.

Peter Walsh

Commissioner of the Court

135869.23 (Annexure A) 

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Decision last updated: 01 November 2023