Loccisano v Hornsby Shire Council

[2024] NSWLEC 1127

Land and Environment Court

New South Wales

Medium Neutral Citation:

Loccisano v Hornsby Shire Council [2024] NSWLEC 1127

Hearing dates:

Conciliation conference held on 11 March 2024

Date of orders:

19 March 2024

Decision date:

19 March 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA/1029/2022 for the demolition of detached garage and Torrens title subdivision of one lot into two at Lot 8 in Deposited Plan 18391, known as 3 Parklands Road, Mount Colah NSW 2079, subject to the conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – Torrens title subdivision – stormwater drainage – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA

Rural Fires Act1997, s 100B

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Hornsby Local Environmental Plan 2013, cll 2.6, 4.1, 5.21

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Peter Loccisano (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2023/270140

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of a detached garage and the Torrens title subdivision of land at 3 Parklands Road, Mount Colah, into two lots. The development application, DA/1029/2022, was refused on 28 February 2023. The present proceedings are an appeal against that refusal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 11 March 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement followed the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amended development application seeks the subdivision of land with some updated plans, as well as a stormwater concept design that has an indicative plan for the drainage of water through downstream properties. The agreement is that this is an acceptable solution for stormwater management, as it is in a location where there is an existing pipe and easement for drainage that is 1m wide, so there will be negligible impact on the downstream properties. However, there will be a requirement for an easement to be created over those properties in favour of the subject site, and separate development consent for those works. The parties have agreed that these requirements will form the subject of a deferred commencement condition.

4. The decision agreed upon is therefore for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for subdivision, which is permissible with consent pursuant to cl 2.6 of the Hornsby Local Environmental Plan 2013 (HLEP).

• The proposed development complies with the development standard concerning minimum subdivision lot size, pursuant to cl 4.1 of the HLEP.

• Clause 5.21 of the HLEP concerns flood planning, and I am satisfied of the matters in cl 5.21(2) based on the stormwater concept plans.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority with terms of agreement that are incorporated in the agreed conditions of development consent.

• The development application was notified between 5 and 26 October 2022 and no submissions were received.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes:

1. That the Respondent, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA/1029/2022 in accordance with the plans and documents listed below:

1. Plan of Proposed Subdivision, prepared by Urban Surveys, Drawing No 1790-L-01, Amendment B, dated 6 November 2023;

2. Geotechnical Site Investigation and Landslide Risk Assessment Report, prepared by Geotesta, dated 2 February 2024;

3. Architectural Plans, drawn by ACOR Consultants, Issue H, dated 8 March 2024:

Drawing No.	Drawing Title
D1	Cover Sheet & Notes
D2	Proposed Subdivision Plan
D3	General Arrangement Plan
D4	Driveway Long Section
D5	General Details
D6	Council Details
D7	Erosion & Sediment Control Plan
D8	Erosion & Sediment Control Notes & Details
D9	Lot 1 Tank Details Sheet
D10	Easement Plan
D11	Post Developed Catchment Plan

2. The amended plans referred to in [8(1)] above have been filed with the Court.

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA/1029/2022 for the demolition of detached garage and Torrens title subdivision of one lot into two at Lot 8 in Deposited Plan 18391, known as 3 Parklands Road, Mount Colah NSW 2079, subject to the conditions of consent at Annexure A.

J Gray

Commissioner of the Court

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Decision last updated: 19 March 2024