Mackenzie Architects International Pty Ltd v Hornsby Shire Council

[2023] NSWLEC 1450

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Hornsby Shire Council [2023] NSWLEC 1450

Hearing dates:

Conciliation conference on 24 July 2023

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/214/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) 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 as agreed or assessed.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA/214/2022 (as amended) for demolition of all structures and the construction of a multi-dwelling housing development comprising 20 x three-bedroom townhouses with basement parking at 19-23 Forbes Street, Hornsby, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing development – 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 2021, s 38

Land and Environment Court Act 1979, s 34

Hornsby Local Environmental Plan 2013, cll 2.3, 6.1, 6.2, 6.4, 6.8

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

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.99

Texts Cited:

Northern Beaches Local Housing Strategy

Northern Beaches Local Strategic Planning Statement

NSW Department of Planning and Environment, Apartment Design Guide

Pittwater 21 Development Control Plan

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
A Seton (Respondent)

Solicitors:
Yates Law (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/337142

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Mackenzie Architects International Pty Ltd (the Applicant), against the refusal of Development Application DA/214/2022 (the DA) by Hornsby Shire Council (the Respondent). At the time of the refusal, the DA sought consent for the demolition of all structures and the construction of a multi-dwelling housing development comprising 22 x three-bedroom townhouses with basement parking at 19-23 Forbes Street, Hornsby (the site).

2. The matter was listed for hearing before me over two days on 24 and 25 July 2023, however during the site viewing at the commencement of the hearing, the parties indicated to me the prospect of an agreement being reached. I granted a short adjournment to allow the parties to finalise a formal agreement, which was filed with the Court on 24 July 2023.

3. Under the Chief Judge’s delegation, the Registrar re-allocated the matter as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) and listed the matter before me on the afternoon of 24 July 2023.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by the Applicant to resolve the contentions initially raised by the Respondent, which included issues of building height, design excellence, character and solar access amongst others. The amended DA now proposes 20 x three-bedroom townhouses and has brought the maximum height of building into compliance with the relevant development standard.

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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 7 to 29 March 2022. Seven submissions were received by the Respondent raising issues including concerns for excessive building height, incompatibility with the local streetscape, dwelling mix and size, overshadowing and privacy impacts, parking and access, traffic congestion, waste collection and fencing.

10. The parties agree that the amended DA satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Hornsby Local Environmental Plan 2013 (HLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as multi-dwelling housing - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the HLEP, the proposed development is consistent with the R3 Medium Density Residential zone objectives, which include providing for the housing needs of the community within a medium density residential environment.

13. The parties agree, and I am satisfied, that all principal development standards of the HLEP have been met by the amended DA.

14. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the HLEP, Acid sulfate soils, the site is not identified within the relevant Acid Sulfate Soils Map and accordingly, cl 6.1 does not apply to the DA.

15. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the HLEP, Earthworks. The Applicant has provided a Geotechnical Report prepared by Martens Consulting Engineers. This report has been assessed by the Respondent and I am satisfied it addresses those matters set out at cl 6.3(3). Agreed conditions of consent reflecting the report’s recommendations are imposed.

16. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the HLEP, Terrestrial biodiversity, the site is not identified within the relevant Terrestrial Biodiversity Map and accordingly, cl 6.4 does not apply to the DA.

17. The parties agree, and I am satisfied, that cl 6.8 of the HLEP, Design excellence, is a relevant provision given that the DA proposes a new building comprising multi-dwelling housing. Accordingly, the DA must exhibit design excellence when considering those matters set out at cl 6.8(4) of the HLEP.

18. The Court was assisted by experts in urban design, who conferred to prepare a joint report. The experts are Mr Dugald Mackenzie, architect for the Applicant and Ms Karla Castellanos, urban designer for the Respondent. Their joint report is dated 24 July 2023 and sets out the experts’ agreement that the amended DA exhibits design excellence in the terms set out at cl 6.8(4) of the HLEP. Accordingly, the parties agree, and I am satisfied that the amended DA exhibits design excellence as required by cl 6.8 of the HLEP.

19. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination and no change of use is proposed. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

20. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument. Chapter 2 of SEPP Biodiversity and Conservation relates to clearing vegetation in non-rural areas.

21. The amended DA proposes to remove a number of trees on the site, however s 2.7(1) makes clear that approval under SEPP Biodiversity and Conservation is not required in a scenario where proposed tree removal is granted consent under Pt 4 of the EPA Act. Accordingly, I am satisfied Ch 2 of SEPP Biodiversity and Conservation has been appropriately addressed.

22. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Pursuant to s 2.99 of SEPP Infrastructure, the DA proposes excavation of at least 2m below existing ground level within 25m of a rail corridor. In accordance with s 2.98 of SEPP Infrastructure, the Respondent has notified Sydney Trains of the DA. A response was received from Sydney Trains and agreed conditions of consent are imposed to reflect the substance of this response.

23. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate number 1409105M, dated 21 July 2023 has been provided with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

24. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

25. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has filed the amended DA with the Court on 5 July 2023.

Orders

26. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/214/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. 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 as agreed or assessed.

3. The appeal is upheld.

4. Consent is granted to Development Application DA/214/2022 (as amended) for demolition of all structures and the construction of a multi-dwelling housing development comprising 20 x three-bedroom townhouses with basement parking at 19-23 Forbes Street, Hornsby, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural Plans

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Decision last updated: 11 August 2023