Misius v Hawkesbury City Council

[2022] NSWLEC 1711

Land and Environment Court

New South Wales

Medium Neutral Citation:

Misius v Hawkesbury City Council [2022] NSWLEC 1711

Hearing dates:

8 and 9 December 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application no DA0364/20 for alterations & additions to an existing dwelling house, use of existing ground floor plate/building elements at 128 Mountain Avenue Yarramundi (Lot 1 DP 223094) is determined by granting consent to the application subject to the conditions in Annexure A.

(3) Exhibits 3, 4 and D are returned and Exhibits 1, 2, 5, A, B, C and E are retained.

Catchwords:

DEVELOPMENT APPEAL – residential - alterations and additions –– site remediation – revegetation management plan - flora and fauna – terrestrial biodiversity – earthworks – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s, 8.7

Environmental Planning and Assessment Regulation 2000 cl 55

Hawkesbury Local Environmental Plan 2012, cll 1.2, 2.3, 6.1

InterpretationAct 1987 ss 5, 30, 30A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Koala Habitat Protection) 2019, cl 9

State Environmental Planning Policy (Resilience and Hazards) 2021

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

Category:

Principal judgment

Parties:

Pamela Gay Misius (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Fairmont Legal (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/91088

Publication restriction:

No

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 DA0364/20 for alterations and additions to an existing dwelling house, the use of the existing ground floor of the dwelling as alterations/additions carried out without consent; addition of a first floor level; erection of a new outbuilding-awning; use of shipping containers for storage purposes; use of existing hard stand area; and construction of new hard stand area adjacent to the proposed new awning for storage (the Proposed Development) at 128 Mountain Avenue Yarramundi, legally described as Lot 1 in DP 223094 (the Site).

2. There are related Class 4 proceedings 2022/052939 against Philip Walton (First Respondent), Walton Engineering Pty Ltd (Second Respondent) and Pamela Misius (Third Respondent).

3. On 19 October 2022 a Building Information Certificate (BIC) application was lodged with the Respondent. The BIC is currently under assessment. The BIC application relates to the “As built elements of both sides of existing dwelling house, concrete slab and retaining walls.”.

4. The Respondent filed an Amended Statement of Facts and Contentions on 16 November 2022 (ASOFAC)(Ex 1) following a Notice of Motion being granted to the Applicant on 2 November 2022 to amend the Proposed Development and rely on amended plans and documents. The Proposed Development was amended as follows:

1. Deletion of the outbuilding-awning structure and hardstand/manoeuvring areas.

2. Deletion of the storage containers.

3. Reduction to the height of the dwelling house – ridge RL now shown to be RL31.72. This was previously shown as RL33.15 which is a reduction of 1.43m.

4. Relocation of the onsite effluent treatment system. The subsurface irrigation area is now positioned closer to the dwelling house.

5. The removal of the existing concrete hardstand area and remediation.

6. Rehabilitation of the site by adopting a vegetation management plan and landscape embellish plan.

5. The Proposed Development before the Court is described as follows:

1. Alterations & additions to an existing dwelling house, use of existing ground floor plate/building elements, site remediation and revegetation works

6. The proceedings commenced with a view of the Site. Council’s Compliance Officer tasked with the assessment of the BIC was also present and undertook a Site inspection.

7. The Site is generally rectangular in shape with an area of 4.087 hectares. It has a frontage to Mountain Avenue of 81.37 metres, frontage to the Grose River of 82.3 metres and side boundaries of 510.63 metres (east) and 505.39 metres (west).

8. A single storey residential dwelling house, outbuilding, several shipping containers, racking and a hardstand area currently occupy the Premises.

9. The Site is located in a rural/residential area approximately 8 kilometres west of the town of Richmond and 2 kilometres north of the small residential development of Yarramundi.

10. Since 1 December 2021 the Land has been zoned C4 Environmental Living pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP). The Land was previously zoned E4 Environmental Living since the commencement of HLEP 2012 on 21 September 2012.

11. The parties rely on a Joint Expert Report prepared by Kerry Nash, Consultant Planner for the Respondent and Momcilo Romic, Consultant Planner for the Applicant filed on 29 November 2022 (JER) (Ex 2).

12. The Respondent submits that the contentions raised by the Respondent in the ASOFAC have been resolved by the amended plans together with the Draft/Proposed Conditions of Consent filed 9 December 2022 (Ex 5) which include 2 disputed conditions, namely deferred condition number 2 and condition 62 which I will come back to. The expert witnesses were not cross examined and the parties rely on their written evidence in the JER (Ex 2).

13. The parties made submissions in relation to the disputed conditions of consent and also explained how the jurisdictional prerequisites are addressed by the evidence. The Respondent submits that consent can be granted by the Court to the Proposed Development subject to conditions of consent. I will first address the jurisdictional prerequisites and will then consider the disputed conditions.

Contaminated Land

14. The Applicant has undertaken unauthorised filling and earthworks on the site over the past 8 years as evidenced by the Plan of Survey and Cross Sections prepared by Shepherd Surveys dated 3 September 2015 which indicates fill up to 3 metres in height. The Respondent’s ASOFAC refers to unauthorised placement of fill also including the adjoining land at 108 Mountain Avenue however, I accept the Applicant’s submission that any fill on adjoining property does not fall within the Court’s jurisdiction in determining these Class 1 proceedings seeking development consent for DA0364/20.

15. There is no change of use to the Site proposed by the Applicant.

16. The State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP (Resilience and Hazards)) came into force on 1 March 2022. Whilst the SEPP (Resilience and Hazards) transfers the provisions of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) to the new SEPP, the provisions of SEPP 55 continue to have effect to the DA pursuant to ss 5(6) and 30(2)(d) of the Interpretation Act 1987. It is also relevant to note that s 30A of the Interpretation Act 1987 provides that the transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.

17. Clause 7(1) of SEPP 55 provides that a consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

18. Clause 7(2) of SEPP 55 provides that:

before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

19. The Proposed Development is supported by a Preliminary and Detailed Site Investigation Report prepared by Broadcrest Consulting dated October 2022 filed with the Court on 25 October 2022 (Preliminary DSI) (Ex A).

20. The experts agree that “the recommendations detailed in Section 4.21 of the Preliminary and Detailed Site Investigation Report prepared by Broadcrest Consulting dated October 2022 will address the removal of unauthorised contaminated fill on the site and removal of the concrete slab.” (JER, par 2.1.1)

21. Consent conditions 2 and 45 (Ex 5) incorporate those same recommendations which are repeated in Section 5 of the Preliminary DSI subject to the express inclusion of the removal of the undisputed second hardstand area in the area referred to as Terrace 1. The parties agree and the Conditions of Consent require the remediation work to be carried out within 12 months of the issue of the first construction certificate.

22. I am satisfied that potential contamination of the land has been appropriately considered and I am satisfied that the land will be suitable, after remediation, for the purpose for which the development is proposed to be carried out.

Re-vegetation and vegetation Management

23. The Site is identified on Sheet B10_008B of the maps in the HLEP 2012 as being 90% covered as “Significant Vegetation” and 10% as “Connectivity between Significant Vegetation” – the 10% element being located on the relatively cleared area on the frontage to the Grose River.

24. The Proposed Development does not propose any vegetation clearing but involves revegetation in accordance with a vegetation management plan .

25. Clause 6.4 of the HLEP 2012 deals with Terrestrial biodiversity. I accept Mr Romic’s evidence that the amended proposal with remedy works would be consistent with the Terrestrial Biodiversity objectives (JER, par 2.4.7)

26. The Applicant seeks to carry out re-vegetation and vegetation management works on the Site to remedy past clearing of the land. The Applicant relies on an Amended Vegetation Management Plan dated 17 November 2022 prepared by Enviro Ecology (VMP) (Appendix F to the JER, Ex 2) and the parties agree that the VMP is to be further amended as a deferred commencement condition (Condition 1, Ex E).

27. The Applicant further relies on a Fauna and Flora Assessment dated 11 September 2016 (Ex A) together with a Statement of Evidence prepared by Enviro Ecology dated 23 August 2022 (Ex A). These documents provide an assessment as to koala habitat concluding that the Site does not support core Koala habitat as no Koalas or evidence of Koala occupation has been recorded. Based on these documents, the Court is satisfied that consent may be granted to the Proposed Development because the development is likely to have low or no impact on koalas or koala habitat pursuant to cl 9(3) of the State Environmental Planning Policy (Koala Habitat Protection) 2019.

28. I accept the evidence of Mr Romic that the landscaping embellishment and Vegetation Management Plan by Enviro Ecology is acceptable to provide for a better environmental outcome. (JER, par 2.3.1)

Consideration of the HLEP

29. I have considered the aims as specified in clause 1.2 of the HLEP

30. Mr Nash provides his opinion that the action[s] of the Applicant are incompatible with the Aims of the HLEP, in particular Clause 1.2(2)(a), (c) and (d) however”

“The Amended Proposal … will go some way in addressing the adverse environmental and visual impacts that have occurred on the land, subject to achieving a successful revegetation strategy under a further Amended Vegetation Management Plan which can be achieved through a deferred commencement condition.” (JER, par 2.4.2)

31. I am satisfied that the Proposed Development, subject to the conditions of consent will be consistent with the aims of the HLEP.

32. I have considered the objectives of the C4 Conservation Living zone objective under cl 2.3 of the HLEP and am satisfied that the Proposed Development is consistent with the relevant objectives. The objectives of the C4 zone are:

Zone C4 Environmental Living

1 Objectives of zone

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To restrict development on land that is inappropriate for development because of its physical characteristics or bushfire risk.

• To ensure that land uses are compatible with existing infrastructure, services and facilities and with the environmental capabilities of the land.

• To encourage existing sustainable agricultural activities.

• To ensure that development does not create or contribute to rural land use conflicts.

• To promote the conservation and enhancement of local native vegetation, including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation.

• To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways.

33. I adopt the reasons given by Mr Nash as follows:

“achieving the environmental outcomes sought under the C4 zone objectives is wholly dependent on achieving the successful implementation of the revegetation of the site over the long term. In this context the removal of the existing goat herd from the site permanently and the introduction of conditions, preferably deferred commencement conditions, to ensure that the timelines detailed in the Amended Vegetation Management Plan are able to be met, that is an initial setup (weed management and producing sufficient endemic plant stock) and planting which can only occur after the remediation of the site and reprofiling of the disturbed landscape. In those circumstances the appropriate timeframe for implanting the revegetation of the site would be for a period of two (2) years after completion of the remediation of the site.” (JER, par 2.4.4)

34. The Site is mapped as a Class 5 land for the purposes of cl 6.1 of the HLEP which regulates the management of acid sulfate soils. As the Site is not within 500 m of adjacent Class 1, 2, 3 or 4 land the provisions of cl 6.1 do not further apply to the Proposed Development.

35. The Applicant has undertaken significant earthworks to the Site and further earthworks are proposed and the Court is required to address the matters for consideration under clause 6.2(3) of the HLEP which provide as follows:

(3) Before granting development consent for earthworks, the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

36. I am satisfied that the mandatory considerations regarding earthworks have been addressed in the assessment documents including:

1. Statement of Environmental Effects dated 20 October 2022, (Ex A2)

2. Erosion and Sediment Review and Compliance Certificate, prepared by Broadcrest dated 23 February 2022 (Ex A1)

3. On-Site Wastewater Report prepared by Broadcrest Consulting Pty Ltd dated October 2022 (Ex A1)

4. Preliminary DSI (Ex A2)

37. The Conditions of Consent (Ex 5) also address discovery of relics (condition 8), stormwater drainage works (condition 14), erosion and sediment control (conditions 16, 34 and 44), site management (condition 37) and remediation works (condition 45).

Draft/Proposed Conditions of consent

38. The parties have agreed on a set of conditions of consent bar conditions 2 and 62 which remain in dispute between the parties (Ex 5).

39. Condition 2 is sought by the Respondent and is not agreed to by the Applicant. It is a deferred commencement condition seeking an amendment to the Preliminary DSI to avoid any confusion regarding a second concrete hardstand area to be removed from within the Terrace 1 area. There is no dispute as to the existence of this second hardstand. The Applicant submits that condition 45 refers to hardstands in the plural and that the deferred commencement condition requiring an amendment to the Preliminary DSI is unnecessary and costly. The Respondent acknowledged that condition 45 refers to hardstands in the plural however, condition 45 requires works in accordance with the recommendations from section 5 of the DSI which refers to a single hardstand area.

40. I accept that there is scope for confusion or uncertainty and accept that the amendment sought by the deferred commencement condition 2 as sought by the Respondent will not involve significant works to provide a relatively simple amendment and clarification to the Preliminary DSI to ensure that the Recommendations include a reference to the second hardstand area in the Terrace 1 area. I conclude that deferred commencement condition 2 should remain.

41. The parties propose two versions for Condition 62. The Respondent’s version reads as follows:

62. Prohibition on the grazing of goats

The grazing of goats is only permitted within MGT Zone 1 (as depicted in Figure 3 of the Vegetation Management Plan dated 17 November 2022 Rev B.

42. The Applicant’s version reads as follows:

62. Exclusion of goats from revegetated areas

Goats must be excluded from MGT Zones 2, 3, 4 and 5 following revegetation (as depicted in Figure 3 of the Vegetation Management Plan dated 17 November 2022 Rev B.)

43. I reproduce below Fig 3.1 of the Amended Vegetation Management Plan dated November 2022 as it appears in Appendix F to the JER and following that image, I reproduce Sheet 1A of the Site Plan.
    

Fig 1: Fig 3.1 of Amended Vegetation Management Plan dated November 2022 (Appendix F, Ex 2)

Fig 2: Site Plan Sheet 1A (Ex A2)

44. The Respondent’s version prohibits goats from the Site, except for Management (MGT) Zone 1. The Applicant submits that this condition cannot lawfully be imposed and the Applicant proposes a condition that would require that goats be excluded from MGT Zones 2, 3, 4 and 5 after they are revegetated. The Applicant gives the following reasons:

1. The grazing of goats on the land is a use (Extensive agriculture) permitted without development consent in the C4 zone (Land Use Table, HLEP).

2. A condition prohibiting the grazing of goats in the areas proposed by the Council does not fairly and reasonably relate to the subject matter of the development application.

45. The Respondent relies on photo 15 of Appendix E to the JER which depicts goats clearly visible from the entrance to the Site from the Mountain Avenue. Page 13 of the VMP at Appendix F JER shows the various MGT Zones 1 to 5 (noting that MGT Zone 5 is to be extended to reflect the area labelled “exiting goat pen” in the Site Plan Sheet 1A of 17 (Ex A). The Respondent draws the Court’s attention that the MGT Zones do not cover the entire area of the Site and that there are concerns that the grazing of goats outside of the MGT Zones 2, 3, 4, and 5 will expose the balance of the Site to the adverse environmental impact of the goats, including the expansive area of the Site towards the road which is not currently marked as within any vegetation management zone.

45. I am satisfied that the Applicant’s evidence in the context of the expert evidence in the JER warrants the restriction sought by the Respondent by limiting the grazing of goats to the area referred to as MGT Zone 1. I conclude that the Respondent’s version of the condition 62 is appropriate.

Findings and conclusion

47. Having considered the evidence before the court, the submissions of the parties and having had the benefit of inspecting the Site, I am satisfied that the Conditions of Consent appropriately resolve the contentions raised by the Respondent in the ASOFAC for the reasons set out in this judgment. I conclude that there is no merit or jurisdictional reason not to grant development consent for the Proposed Development as sought by the Applicant.

Notations:

48. The Court notes that:

1. The Respondent council agrees pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the Proposed Development by updated Sheets 6 and 7 of the Architectural drawings;

2. The amending documents were uploaded onto NSW Planning Portal on 8 December 2022; and

3. The amended documents have been filed with the Court on 8 December 2022

Orders:

49. The Court orders:

1. The appeal is upheld.

2. Development application no DA0364/20 for alterations & additions to an existing dwelling house, use of existing ground floor plate/building elements, site remediation and revegetation works at 128 Mountain Avenue Yarramundi (Lot 1 DP 223094) is determined by granting consent to the application subject to the conditions in Annexure A.

3. Exhibits 3, 4 and D are returned and Exhibits 1, 2, 5, A, B, C and E are retained.

E Espinosa

Commissioner of the Court

**********

Annexure A 

Decision last updated: 20 December 2022