Lin v Hawkesbury City Council

[2022] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lin v Hawkesbury City Council [2022] NSWLEC 1098

Hearing dates:

Conciliation conference on 21 February 2022

Date of orders:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development Application No. DA0140/20 for the construction of a single storey residential dwelling with ancillary development comprising the installation of new wastewater and stormwater management systems on the land at 109 Hanckel Road, Oakville, being Lot 15 in DP 32307 is approved subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016

Biodiversity Conservation Regulation 2017

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

State Environmental Planning Policy (Koala Habitat Protection) 2020, cl 8

State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 18

State Environmental Planning Policy No 55 - Remediation of Land, cl 7

Sydney Regional Environmental Plan No 20 -Hawkesbury-Nepean River (No 2—1997), cll 6, 8

Hawkesbury Local Environmental Plan 2012, cll 2.3, 4.3, 6.2, 6.4

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021)

Hawkesbury Development Control Plan 2002

Category:

Principal judgment

Parties:

Guang Ping Lin (First Applicant)
Hui Lan Cai (Second Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicants)
S Patterson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2021/275141

Publication restriction:

No

Judgment

1. COMMISSIONER: Guang Ping Lin and Hui Lan Cai (the Applicants) have appealed the refusal by Hawkesbury City Council (the Respondent) of Development Application number DA0140/20, made with owner’s consent, seeking consent for the construction of a single storey residential dwelling with ancillary development comprising the installation of new wastewater and stormwater management systems (the Proposed Development) on the land at 109 Hanckel Road, Oakville also known as Lot 15 in DP 32307 (the Subject Site).

2. The Respondent has confirmed that the Applicant’s development application was not required to be notified pursuant to the provisions of Hawkesbury Development Control Plan 2002 (HDCP).

3. The Applicants appealed the refusal of his development application under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and is determined under s 4.16 of the EP&A Act.

4. On 21 February 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference. As the application was not required to be notified (see above at [2]) no objectors sought to make submissions in relation to the Proposed Development as part of the proceedings.

6. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. Under s 34(3) of the Land and Environment Court Act 1979 (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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP55), cl 7(1)(a) requires the consent authority to consider whether the land is contaminated. The Parties advise, and I am satisfied that consideration has been given as to whether the Site is contaminated, and that:

1. no change of use is proposed as the Subject Site currently contains a dwelling at the location of the Proposed Development and the Subject Site is unlikely to be contaminated; and

2. the Subject Site is suitable for the purpose for which the development is proposed to be carried out in fulfilment of the provisions of cl 7 of SEPP55;

2. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX):

1. clause 6 of SEPP BASIX requires that the Development Application be accompanied by a BASIX certificate;

2. a BASIX certificate (No. 1061265S_03) has been issued with respect to the application, dated 20 January 2021;

3. in relation to State Environmental Planning Policy (Koala Habitat Protection) 2020:

1. the Applicant’s development application DA0140/20 was lodged on 8 May 2020 before the commencement of State Environmental Planning Policy (Koala Habitat Protection) 2021, and by dint of the provisions in cl 18 of that policy, the development application in this appeal is subject to the provisions of State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020);

2. Koala SEPP 2020 applies to local government areas listed in Schedule 1 of that policy, and the Hawkesbury Local Government Area is so listed, and it applies to land that has an area of more than 1 hectare, and the Subject Site has an area of 2.025 hectares;

3. the Parties have agreed, relying on assessments provided by the Applicant’s ecological consultants, that the Subject Site does not contain any core koala habitat, and there is no jurisdictional block to the grant of consent under the provisions of Koala SEPP 2020;

4. having considered the submissions of the Parties, and having reviewed the advice provided by the Applicant’s ecological consultants, including the materials within and accompanying both the BDAR (as amended) and the BDAR addendum, I am satisfied that:

1. the Applicant’s ecological consultants hold appropriate qualifications and experience in biological science and fauna survey and management;

2. the advice that that there is no core koala habitat on the Subject Site has been provided by the Applicant’s ecological consultants, and the assessment of koala habitat was based on information obtained by those consultants;

3. based on the advice provided by the Applicant’s expert, and as agreed by the Parties, there is no core koala habitat on the Subject Site, and consent can be granted to the Applicant’s development application consistent with the provisions of Koala SEPP 2020

4. in relation to the provisions of Sydney Regional Environmental Plan No. 20—Hawkesbury-Nepean River (No 2—1997) (SREP No.20), the parties advice, and I am satisfied, that:

1. the aim of SREP No.20 is to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context;

2. SREP No.20 includes strategies for the assessment of development in relation to water quality and quantity, scenic quality, aquaculture, recreation and tourism;

3. the Proposed Development is consistent with the aims of SREP No. 20, the strategies listed in the Action Plan of the Hawkesbury-Nepean Planning Strategy and the specific planning policies and recommended strategies and development controls contained in cll 6 and 8 of SREP No.20; and

4. the Proposed Development is unlikely to generate significant additional stormwater and is generally consistent with the provisions of SREP No. 20;

5. in relation to the provisions of the Hawkesbury Local Environmental Plan 2012 (HLEP):

1. under the provisions of cl 2.3, the Subject Site is zoned RU4 Primary Production Small Lots, and the Proposed Development is permissible on the Subject Site;

2. the Subject Site is subject to a maximum height of buildings control of 10m pursuant to cl 4.3 of HLEP, and the Proposed Development complies with this control;

3. the Subject Site is classified as Class 4 (low impact) and the Parties have agreed, and I am satisfied, that the Proposed Development is unlikely to lower the water table or expose acid sulphate soils as no significant excavation is proposed and the matters required to be addressed in cl 6.1 of HLEP have been met;

4. the Applicant does not propose that any earthworks are to be undertaken as part of the Proposed Development and so the provisions of cl 6.2(3) of HLEP have no application in the current appeal;

5. in relation to the provisions of cl 6.4 of HLEP, concerning terrestrial biodiversity, the Parties have agreed, and I am satisfied, that the Proposed Development is designed, sited, and will be managed so as to avoid any significant adverse environmental impact;

6. as required under the provisions of cl 6.7 in relation to essential services, the Parties have confirmed, and I am satisfied, that the land is capable of connecting to required essential services;

6. in relation to the provisions of the Biodiversity Conservation Act 2016 (the BC Act):

1. a biodiversity development assessment report (BDAR) prepared by UBM Ecological Consultants Pty Ltd together with a BDAR addendum prepared by Keystone Ecological Pty Ltd has been submitted in support of the development application having regard to the clearing of vegetation required to facilitate the development;

2. the Applicant has proposed the clearing of certain vegetation that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a BDAR is therefore required;

3. the Applicant’s BDAR has been prepared by an accredited biobanking assessor, and is in the form required by the BC Act and the BC Regulation;

4. the Parties agreed conditions of consent for the development application impose a requirement on the Applicant to retire 3 ecosystem credits and 4 species credits prior to the issue of a construction certificate, in accordance with the requirements of the BDAR (as amended) prepared by UBM Ecological Consultants Pty Ltd and the BDAR addendum prepared by Keystone Ecological Pty Ltd;

5. The Parties have agreed, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied in relation to the Proposed Development;

7. the relevant provisions of HDCP have been taken into account in assessing the Proposed Development, and the Parties advise, and I am satisfied, that the Proposed Development is acceptable having regard to the provisions of the HDCP and s 4.15(1)(a)(iii) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

10. 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. 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.

Orders

13. The Court orders that:

1. the Appeal is upheld.

2. Development Application No. DA0140/20 for the construction of a single storey residential dwelling with ancillary development comprising the installation of new wastewater and stormwater management systems on the land at 109 Hanckel Road, Oakville, being Lot 15 in DP 32307 is approved subject to the conditions set out in Annexure “A” to this agreement..

………………………..

M Chilcott

Commissioner of the Court

Annexure A (259542, pdf)

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Decision last updated: 25 February 2022