Loccisano v Hornsby Shire Council

[2023] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:

Loccisano v Hornsby Shire Council [2023] NSWLEC 1497

Hearing dates:

Conciliation conferences on 19 June, 24 July and 18 August 2023

Date of orders:

05 September 2023

Decision date:

05 September 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, in the amount of $2,000.

(2) The appeal is upheld.

(3) Development Application No. DA/448/2022, as amended, for the construction of a multi dwelling housing development comprising eight townhouses with basement car parking at Lot 1 in DP311860 and known as 406 Peats Ferry Road, Hornsby, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – multi dwelling housing – conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 38

Hornsby Shire Local Environmental Plan 2013, cll 2.3, 4.3, 6.2, 6.8

Land and Environment Court Act 1979, s 34

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

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

Category:

Principal judgment

Parties:

Carmela Loccisano (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Local Government Legal (Respondent)

File Number(s):

2022/379642

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/488/2022 for the construction of a multi dwelling housing development comprising eight townhouses with basement car parking (proposed development) at 406 Peats Ferry Road, Hornsby, legally described as Lot 1 in DP311860 (the subject site).

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 19 June 2023. I have presided over the conciliation conference.

3. Further information and amended plans were filed with the Court on 11 August 2023 and 15 August 2023. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA/448/2022 in accordance with the documents listed at [20] (amended application). The key amendments are:

• Reconfiguration of townhouses, in particular townhouses 7 and 8 to the rear

• Changes to the communal open space area

• Changes to the roofs and presentation of the first townhouse to the street

• Modifications to the basement and waste configuration

• Various internal modifications

4. 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 for the amended application and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the filed s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

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

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the development application.

10. The subject site is zoned R3 Medium Density Residential pursuant to the Hornsby Local Environmental Plan 2013 (HLEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

11. Clause 4.3 Height of buildings of the HLEP applies, which allows a maximum height of 10.5m. The parties agree and I am satisfied on the basis of the Architectural Plans drawn by Cuevos and Associates filed with the Court on 11 August 2023 and the Statement of Environmental Effects prepared by Planning Direction Pty Ltd dated 24 September 2021 that the amended development application is less than 10.5m in height.

12. Clause 6.2 Earthworks of the HLEP applies to the proposed development. I have considered the provisions of cl 6.2 and agree with the parties that the requirements have been met on the basis of the Statement of Environmental Effects prepared by Planning Direction Pty Ltd dated 24 September 2021, Construction Environmental Management Plan authored by iEnvironmental Australia dated 25 June 2021, Sediment Control Plan prepared by BMB Engineers dated 2021, the Stormwater Management Plans in Annexure A and the conditions of consent (including the deferred commencement condition).

13. Clause 6.8 Design excellence applies to the proposed development. I have considered the relevant provisions of cl 6.8 and note the agreement of the parties that the amended application addresses the requirements of cl 6.8 on the basis of the jurisdictional statement, Landscape Plans prepared by Earth Matters Consulting and Architectural Plans drawn by Cuevos and Associates filed with the Court on 11 August 2023.

14. The parties agree and I accept that the amended development application is accompanied by an amended BASIX Certificate that satisfies the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

15. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The parties agree and I am satisfied with consideration of the Statement of Environmental Effects prepared by Planning Direction Pty Ltd dated 24 September 2021 that the subject site has a history of residential use and that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

16. The Respondent notified the development application between 26 June and 17 July 2022. One submission was received which has been considered by the consent authority.

Conclusion

17. 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.

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

19. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

20. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA/448/2022 to rely upon the following amended plans and documents:

Document	Prepared by:	Drawing No	Issue	Date
DA Document List, Site Plan, Roof Plan, Streetscape, Site Analysis & Statistics	Cuevas & Associates	A000	G	01.08.2023
Basement Floor Plan, Ground Floor Plan	Cuevas & Associates	A001	Q	03.08.2023
First Floor Plan, Attic	Cuevas & Associates	A002	J	01.08.2023
Elevations	Cuevas & Associates	A003	G	01.08.2023
West Elevation & Section A	Cuevas & Associates	A004	I	03.08.2023
Sections	Cuevas & Associates	A005	G	03.08.2023
Driveway Section, Detailed Sections	Cuevas & Associates	A006	H	03.08.2023
Shadow Diagrams	Cuevas & Associates	A010	A	01.08.2023
Schematic Images	Cuevas & Associates	Pg1	17.07.2023
Schematic Images	Cuevas & Associates	Pg2	17.07.2023
Landscape Plan	Earth Matters Consulting	LD01	R2	10.07.2023
Landscape Elevations	Earth Matters Consulting	LD02	R1	10.08.2023
Swept Path Plan	Traffic Solutions Pty Ltd	A001	I	05.07.2023
Cover Sheet and Notes	ACOR Consultants	SW1	A	19.07.2023
Stormwater Management Plan – Basement Part 1	ACOR Consultants	SW2	A	19.07.2023
Stormwater Management Plan – Basement Part 2	ACOR Consultants	SW3	A	19.07.2023
Stormwater Management Plan – Ground Floor Part 1	ACOR Consultants	SW4	A	19.07.2023
Stormwater Management Plan – Ground Floor Part 2	ACOR Consultants	SW5	A	19.07.2023
Stormwater Management Details Sheet No. 1	ACOR Consultants	SW6	A	19.07.2023
Stormwater Management Details Sheet No. 2	ACOR Consultants	SW7	A	19.07.2023
Document	Prepared by	Reference	Issue	Date
Waste Management Plan	Ratio Consultants	18432W-REP02F01	REP02-F01	21.07.2023
BASIX	Certified Energy 1	1220518M	25.07.2023

21. The Applicant filed the amended development application with the Court on 11 August and 15 August 2023 and the final s 34 agreement on 18 August 2023.

Orders:

22. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $2,000.

2. The appeal is upheld.

3. Development Application No. DA/448/2022, as amended, for the construction of a multi dwelling housing development comprising eight townhouses with basement car parking at Lot 1 in DP311860 and known as 406 Peats Ferry Road, Hornsby, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 05 September 2023