Mepstead & Associates Pty Ltd v Hawkesbury City Council

[2023] NSWLEC 1255

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mepstead & Associates Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1255

Hearing dates:

Hearing and conciliation conference on 4 May 2023

Date of orders:

24 May 2023

Decision date:

24 May 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA0123/22 for the demolition of existing structures and the subdivision of land into 17 residential Torrens Title lots and 3 residue Torrens Title lots and associated site works on land legally described as Lot 1, Lot 2, and Lot 3 in Deposited Plan 1037470 and known as 621, 627 and 633 Windsor Road, Vineyard, NSW, 2765, subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 1.4, 6.65, 9.4, 9.5

State Environmental Planning Policy (Infrastructure) 2007, cl 101

State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 12, ss 2.3, 2.6, 2.7, 4.1, 4.1I, 6.3, 6.8, 6.9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 1.4

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 1.4

State Environmental Planning Policy No. 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Mepstead & Associates Pty Ltd (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
P Hudson (solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/169117

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Hawkesbury City Council, of Development Application No DA0123/22. This development application seeks consent for the demolition of existing structures, remediation of land, earthworks, construction of public roads and infrastructure, tree removal, and subdivision to create 18 Torrens title lots for residential development and 2 Torrens title residue lots at 627 Windsor Road, Vineyard, legally described as Lot 2 in DP 1037470.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. On 28 March 2023 the Court granted leave to the Applicant to amend the application with a suite of revised drawings and accompanying reports. On the basis of this amended application, the matter proceeded to a hearing on 4 May 2023 however, at the commencement of the hearing, the parties advised that the amended application had resolved all relevant contentions and owner’s consent for works on a neighbouring site had been obtained. The parties advised that an in-principle agreement had been reached between the parties, and at their request the Court subsequently 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 the same day. I presided over both the hearing and the conciliation conference.

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 and granting development consent to the development application subject to conditions.

5. The amended application resolved the various contentions through revised designs, the submission of amended and additional reports, and the imposition of various conditions.

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 development application. 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. From this I note:

1. The consent of the owners of both the subject site and the neighbouring site, Lot 2 DP1037470 and Lot 1 DP1037470 respectively, has been filed with the Court.

2. The development application was notified from 2-16 June 2022. No submissions were received.

3. The development application was also notified to Transport for NSW (TFNSW) and the NSW Rural Fire Service (RFS). TFNSW have issued conditions in support of the amended DA, which are incorporated into Condition 2 of Annexure A. No objections were received from the RFS.

4. The State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City SEPP) is applicable to the DA, and specifically, Appendix 12 Hawkesbury Growth Centres Precinct Plan (the Precinct Plan) applies to the site.

5. The Site has several zonings under the Precinct Plan. These include:

1. R2 Low Density Residential;

2. E4 Environmental Living;

3. SP2 Infrastructure – Local Road;

4. SP2 Infrastructure – Drainage; and

5. RE1 Public Recreation.

6. Pursuant to s 2.6 of the Precinct Plan, subdivision of land is permitted with consent. Demolition work is also permitted with consent under s 2.7 of the Precinct Plan.

7. Pursuant to s 2.3 of the Precinct Plan, I must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. This application seeks consent for subdivision of land into 15 lots within the R2 zone, and a further subdivision of land in to 2 larger residential lots within the E4 zone. The parties submit and I accept that the proposed application is consistent with the relevant objectives of the R2 zone to provide for the housing needs of the community in a low density residential environment, and within the E4 zone to provide low-impact residential development.

8. Pursuant to s 4.1 of the Precinct Plan, a minimum lot size of 1500m² applies to the land where proposed lots 16 and 17 are located. Both lots are 1500m² or greater and comply with these requirements.

9. Section 4.1I(3) of the Precinct Plan refers to a Residential Density Map that applies to the front portion of the site and sets a dwelling density range of 15-18 dwellings per hectare. Based on the Net Developable Area plan, the parties submit and I accept that the relevant portion of the site proposes 15 lots per hectare and meets the requirements of this clause.

10. The parties submit and I accept that public utility infrastructure for water, sewer, electricity and telecommunication services are available to the site and will be connected to the proposed development in accordance with the relevant authority requirements.

11. Pursuant to s 6.3 of the Precinct Plan, the parties submit and I accept that there is no proposed removal of existing native vegetation on the site.

12. Pursuant to s 6.8 of the Precinct Plan, the parties submit and, based on this and the information contained in the Statement of Environmental Effects (SEE) I accept that although the site is mapped as Class 5 Acid Sulfate Soils, no works are proposed to be below 5 metres AHD and the water table is not likely to be lowered below 1 meter AHD, and that therefore the requirements of this section are met.

13. Section 6.9 of the Precinct Plan requires me to consider a list of matters before granting development consent for earthworks. The parties submit and, based on their stated list of documents I accept that the items listed in these sections are adequately considered through relevant conditions of consent and the following documents:

1. Aboriginal Heritage Due Diligence Assessment by Baker Archaeology, dated 6 March 2023.

2. Bushfire Assessment by Peterson Bushfire, dated 9 March 2023.

3. Vegetation Management Plan by Cumberland Ecology, dated 9 March 2023.

4. Construction Environmental Management Plan for Ecological Works by Cumberland Ecology, dated 9 March 2023.

5. Construction Environmental Management Plan for Engineering Works by Mepstead & Associates, dated March 2023.

6. Waste Management Plan filed to Hawkesbury City Council on 24 March 2023.

7. Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation by Sydney Environmental Group, dated 8 March 2023 (DSI).

8. Remedial Action Plan by Sydney Environmental Group, dated 9 March 2023 (RAP).

9. Soil Salinity Assessment by Sydney Environmental Group, dated 8 March 2023.

10. Flood Impact Assessment by WMS Engineering, dated 8 March 2023.

14. State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) was applicable to the development application at the time of lodgement but was subsequently repealed. The relevant provisions have been transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) which commenced on 1 March 2022. Section 1.4 of the Resilience and Hazards SEPP provides that s 30A of the Interpretation Act 1987 applies to all transferred provisions, such that the transferred provisions are to be construed as if they had not been so transferred.

15. Subsequently, cl 7 of SEPP 55 requires me to consider whether the land is contaminated and if so, whether it is suitable, or will be suitable after remediation, for the purpose for which the development is proposed to be carried out. Based on the information contained in the DSI, RAP, State 1 Preliminary Site Investigation by Sydney Environmental Group dated 8 March 2023, and the parties’ submissions, I am satisfied that the site will be suitable, after remediation for the purpose for which the development is proposed to be carried out, and that the land will be remediated before it is used for that purpose.

16. The Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River Plan (Hawkesbury-Nepean River Plan) was applicable to the development application at the time of lodgement but was subsequently repealed. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) commenced on 1 March 2022 and served to repeal the Hawkesbury-Nepean River Plan, transferring relevant provisions to the Biodiversity and Conservation SEPP. Section 1.4 of the Biodiversity and Conservation SEPP provides that s 30A of the Interpretation Act 1987 applies to all transferred provisions, such that the transferred provisions are to be construed as if they had not been so transferred.

17. However, Ch 9 of the Biodiversity Conservation SEPP (which contained the transferred provisions of the Hawkesbury-Nepean River Plan) was subsequently replead by the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments SEPP) on its commencement on 21 November 2022.

18. Pursuant to s 6.65 of the Biodiversity and Conservation SEPP, the now repealed Ch 9 continues to apply to the proposed development application as it was lodged but not finally determined before the commencement of the Water Catchments SEPP on 21 November 2022.

19. Based on the parties’ submission and the relevant documents within the Class 1 application, I am satisfied that the matters identified under ss 9.4 and 9.5 of the Biodiversity and Conservation SEPP have been adequately considered in the assessment of this application.

20. The State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) was applicable to the DA at the time of lodgement but was repealed upon the commencement of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) on 1 March 2022, whereby all relevant provisions were transferred to the Transport and Infrastructure SEPP. Section 1.4 of the Transport and Infrastructure SEPP provides that s 30A of the Interpretation Act 1987 applies to all transferred provisions, such that the transferred provisions are to be construed as if they had not been so transferred.

21. Subsequently, as the Site has a frontage to a classified road, cl 101 of the Infrastructure SEPP applies. Based on the parties’ submissions and the drawings within the amended application I accept that the provisions of cl 101 are satisfied.

7. For these reasons, 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.

8. As the parties’ decision is one 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.

9. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA0123/22 for the demolition of existing structures and the subdivision of land into 17 residential Torrens Title lots and 3 residue Torrens Title lots and associated site works on land legally described as Lot 1, Lot 2, and Lot 3 in Deposited Plan 1037470 and known as 621, 627 and 633 Windsor Road, Vineyard, NSW, 2765, subject to the conditions at Annexure A.

E Washington

Acting Commissioner of the Court

(Annexure A) (1826935, pdf)

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Decision last updated: 24 May 2023