Manimalan v Hornsby Shire Council

[2020] NSWLEC 1286

Land and Environment Court

New South Wales

Medium Neutral Citation:

Manimalan v Hornsby Shire Council [2020] NSWLEC 1286

Hearing dates:

Conciliation conference on 2 July 2020

Date of orders:

02 July 2020

Decision date:

02 July 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

See orders at [7] below

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Hornsby Local Environmental Plan 2013

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Hornsby Development Control Plan 2013

Category:

Principal judgment

Parties:

Manoj Manimalan (First Applicant)
Narmatha Manoj (Second Applicant)
Rajkumar Mani (Third Applicant)
Sangeetha Rumu (Fourth Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
P Rigg (Solicitor) (Applicants)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Peter R Rigg (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2019/99009

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for a two-lot subdivision of land 41 New Line Road, West Pennant Hills, including the demolition of existing structures on site, the removal of five (5) trees and the Torrens tile subdivision of one allotment into two. Proposed Lot 1 has frontage to New Line Road and an area of 630m², and proposed Lot 2 is a battle axe allotment proposed to have an area of 581.2m² with an access handle of 110.3m². An access way connecting Lot 2 to New Line Road is proposed within the access handle. Hornsby Shire Council refused the development application, and the applicant lodged an appeal 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 [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 2 July 2020. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application includes drainage of the allotments that is facilitated by a charged drainage system to New Line Road for the future dwelling houses, with stormwater from hardstand spaces and the driveway being disposed of via two absorption / level spreader systems located in the rear setback of the proposed allotments. The parties agree that, in the circumstances of the proposed development, this drainage system achieves the objectives of the relevant clauses of the Hornsby Development Control Plan 2013 (“HDCP 2013”) concerning Stormwater Management, and is therefore acceptable, consistent with the requirements of s 4.15(3A)(b) of the EPA Act.

4. 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 application was made with the consent in writing of the owners of Lot 2 625149 known as 41 New Line Road, Pennant Hills in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000.

• The subject site is zoned R2 Low Density Residential pursuant to the Hornsby Local Environmental Plan 2013 (“HLEP 2013”). Pursuant to cl 2.6 of the HLEP 2013, subdivision is permissible with development consent, and pursuant to cl 2.7, demolition works are permissible with development consent.

• The proposed lots meet the minimum subdivision lot size of 500m², which applies pursuant to cl 4.1 of the HELP 2013.

• The development does not contravene any development standard contained in HLEP 2013 or any other environmental planning instrument.

• The site is located within the vicinity of Heritage Item No 790, at 37 New Line Road. I accept the Council’s position that the site is physically removed from the heritage item and that, consistent with what is required to be considered by cl 5.10(4) of the HELP 2013, the proposed development will not adversely affect the heritage significance of the item.

• Consistent with what is required to be considered by cl 6.2 of the HLEP 2013, I accept the Council’s position that there is minimal earthworks or excavation required by the proposed development, and that there will be no disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development.

• Pursuant to cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. Given that the site has historically been used for residential purposes, I accept the parties’ agreement that the site is unlikely to be contaminated.

• The Council has indicated, and I accept, that the application was notified in accordance with the Environmental Planning and Assessment Regulation 2000, and no submissions were received.

5. 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)).

6. 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.

7. The Court orders that:

1. The Applicant is granted leave to amend Development Application No. DA/474/2018 and rely upon the following plans:

DESCRIPTION	AUTHOR	SHEET	REVISION	DATE
Proposed Stormwater Management Plan	Robert Moore & Associates Pty Ltd	1 of 3	B	28.05.20
Infiltration System and Rainwater Tank Details	Robert Moore & Associates Pty Ltd	2 of 3	B	28.05.20

2. The appeal is upheld.

3. Development Application No. DA/474/2018 for the demolition of existing structures, removal of five (5) trees, Torrens title subdivision of Lot 2 DP 625149 to create two allotments, being proposed Lot 1 (630m²) and proposed Lot 2 (581.2m²), construction of a driveway connecting proposed Lot 2 (which will be a battle axe lot) to New Line Road, and on-site absorption systems for proposed Lots 1 and 2 is approved subject to the conditions of consent in Annexure “A”.

……………………..

J Gray

Commissioner of the Court

Annexure A (211760, pdf)

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