Martin v The Hills Shire Council

[2020] NSWLEC 1304

Land and Environment Court

New South Wales

Medium Neutral Citation:

Martin v The Hills Shire Council [2020] NSWLEC 1304

Hearing dates:

Conciliation conference on 3 July 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application 1236/2019/ZA for partial demolition of an existing retaining wall, removal of two trees and construction of a reinforced concrete driveway and laying of pre-provisioning service utility conduits from 48 Green Road, Kellyville (Lot C DP 354263) to Carlisle Crescent through 14 and 16 Carlisle Crescent Kellyville (Lots 140 and 142 DP 870865) is approved subject to conditions set out in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – driveway and drainage works – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Hills Local Environmental Plan 2012

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Matthew Martin (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
D Tyrell (Solicitor) (Applicant)
J Corrandini-Bird (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/345916

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant, Matthew Martin, appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Hills Shire Council of Development Application No. 1236/2019/ZA. The development application seeks consent for driveway and drainage works from the property at 48 Green Road, Kellyville through to Carlisle Crescent. The works traverse the properties at 48 Green Road, and 14 and 16 Carlisle Crescent, Kellyville (the site). Owners Consent has been provided from each property owner.

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 3 July 2020. Through the conciliation process, the parties have agreed to an amended design for the development, and an agreement under s 34(3) of the LEC Act has been reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. Consent of the owners of the land to which the development relates has been provided: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

2. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. In determining the application, I have considered whether the land is contaminated and I am satisfied that: there is no evidence that the site poses a risk of contamination; no further investigation of the site is warranted in the circumstances; and the site is considered to be suitable for the proposed development.

3. Pursuant to the Hills Local Environmental Plan 2013 (LEP 2013) the site is zoned R2 Low Density Residential. Construction of a driveway is permissible in the zone. In determining the application, I have taken the objectives of the zone into account. The development does not breach any of the development standards in LEP 2013 and to the extent relevant I have considered the factors relevant to the development detailed in cl 7.1 Acid Sulfate Soils and cl 7.2 Earthworks of LEP 2013.

4. The DA lodged with the Respondent was placed on notification in accordance with the planning controls. I am satisfied that the submissions have been taken into consideration in determining the application.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development Application 1236/2019/ZA for partial demolition of an existing retaining wall, removal of two trees and construction of a reinforced concrete driveway and laying of pre-provisioning service utility conduits from 48 Green Road, Kellyville (Lot C DP 354263) to Carlisle Crescent through 14 and 16 Carlisle Crescent Kellyville (Lots 140 and 142 DP 870865) is approved subject to conditions set out in Annexure A to this agreement.

………………………………..

D M Dickson

Commissioner of the Court

Annexure A (132802, pdf)

**********

Decision last updated: 15 July 2020