Morson v Hornsby Shire Council

[2022] NSWLEC 1665

Land and Environment Court

New South Wales

Medium Neutral Citation:

Morson v Hornsby Shire Council [2022] NSWLEC 1665

Hearing dates:

11 and 21 November 2022

Date of orders:

02 December 2022

Decision date:

02 December 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA/147/2022 for the construction of a dwelling house, swimming pool, driveway and associated

landscaping at Lot 5 in Deposited Plan 243183, 16 Karalee Road, Galston NSW 2159, as amended, is determined by the

granting of consent subject to the conditions marked Annexure "A".

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7
Environment Planning and Assessment Regulation 2000 cl 55, Sch 1
Hornsby Local Environmental Plan 2013, cll 2.3, 4.3, 6.2

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021

Texts Cited:

Hornsby Shire Council, Community Engagement Plan 2021

Hornsby Development Control Plan 2013

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy April 2021

NSW Rural Fire Service, Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

Peter Morson ( Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
M Cottom (Solicitor)(Respondent)

Solicitors:
Maclarens Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2022/233547

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Peter Morson (the Applicant) has appealed the refusal by Hornsby Shire Council (the Respondent) of his Development Application No. DA/147/2022 seeking consent for the construction of a dwelling house, swimming pool, driveway and associated landscaping (the Proposed Development) at Lot 5 in Deposited Plan 243183, also known as 16 Karalee Road, Galston (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Proposed Development was notified in accordance with the provisions of Hornsby Shire Council’s Community Engagement Plan 2021 between 18 February and 10 March 2022, and then an amended application was notified between 1 June and 23 June 2022. Twenty-five (25) submissions were received in response to the initial notification and 29 submissions in response to the subsequent notification.

4. On 11 and 21 November 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s development application, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Land and Environment Court’s COVID-19 Pandemic Arrangements Policy April 2021.

6. A site inspection was undertaken prior to the conciliation conference being convened, and six objectors made a submission during the site view stating concerns in relation to potential impacts concerning traffic, stormwater, privacy, biodiversity, excavation, the bulk scale and character of the Proposed Development, waste management and bushfire.

7. At the conciliation conference following the site view, the Parties reached an 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 consent to the Applicant’s development application, subject to conditions.

8. 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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise the power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. the Subject Site is zoned in part RU4 Primary Production Small Lots and in part C3 Environmental Management under the provisions cl 2.3 of Hornsby Local Environmental Plan 2013 (HLEP), and:

1. development for the purposes of dwellings is permissible under the RU4 zoning of the Subject Site;

2. the Applicant’s proposed dwelling is proposed to be constructed on that part of the Subject Site zoned RU4;

3. the Parties agree, and I am satisfied, that the Applicant’s Proposed Development is consistent with the objectives of the RU4 and C3 zones to which regard must be had in determining the Applicant’s development application;

2. in relation to the further provisions of HLEP:

1. pursuant to the provisions of cl 4.3, the Proposed Development complies with the maximum height of building development standard applicable to development on the Subject Site which is a height of 10.5 metres;

2. clause 6.2 concerns earthworks and applies to development on the Subject Site, and:

1. the Proposed Development includes excavation; and

2. the Parties’ agreed conditions of consent include conditions that will avoid and minimise any potential impacts associated with the Applicant’s proposed excavation works;

3. In relation to bushfire matters, and the provisions of s 4.14 of the EP&A Act:

1. the Subject Site is bush fire prone land;

2. development consent cannot be granted unless the consent authority is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the relevant specifications and requirements in Planning for Bush Fire Protection 2019; and

3. based on the letter from the NSW Rural Fire Service, dated 15 May 2022, including its general terms of approval which are included within the Parties’ agreed conditions of consent, I am satisfied that the Proposed Development conforms to the relevant specifications and requirements of Planning for Bush Fire Protection 2019;

4. in relation to the provisions of Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Applicant’s amended development application is accompanied by a BASIX Certificate (N^o.1250182S_05 dated 17/11/22) in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000;

5. in relation the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 , the Parties advise, and I am satisfied, that:

1. the Applicant has provided a Stage 1 Preliminary Site Investigation and a Stage 2 Detailed Site Investigation in relation to the Subject Site; and

2. I am satisfied, relying on the Application’s site investigations that the Subject Site is, or will be made, suitable for its proposed use for residential purposes;

6. there is no provision of Hornsby Development Control Plan 2013 that would form a basis for refusal of the Proposed Development;

7. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors which is a relevant consideration under s 4.15(1)(d) of the EP&A Act.

10. Having considered the advice of the Parties, provided above at [9], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

3. approval of the Proposed Development is in the public interest.

11. Further, 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.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

13. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

14. The Court notes that:

1. Hornsby Shire Council, as the relevant consent authority has agreed, under cl 55 of the EP&A Regulation, to the Applicant amending the application for development consent by relying on the following amended plans and other documents:

         Architectural plans, dated 15 November 2022

1. Proposed Dwelling & Shed Building (cover page) (prepared by Morson Group, drawing number DA00, issue E)

2. Demolition Plan (prepared by Morson Group, drawing number DA01, issue E)

3. Site Plan (prepared by Morson Group, drawing number DA02, issue H)

4. Ground Floor (prepared by Morson Group, drawing number DA03, issue F)

5. Basement (prepared by Morson Group, drawing number DA04, issue F)

6. North and South Elevations (prepared by Morson Group, drawing number DA05, issue F)

7. East and West Elevations (prepared by Morson Group, drawing number DA06, issue F)

8. Sections (prepared by Morson Group, drawing number DA07, issue E)

9. Window Schedule (prepared by Morson Group, drawing number DA12, issue C)

10. Schedule of External Finishes (prepared by Morson Group, drawing DA14, issue A) 

11. Asset Protection Zone (APZ) (prepared by Morson Group, drawing DA15, issue G)

12. Cut and Fill Plan (prepared by Morson Group, drawing number DA16, issue F)

13. North – South Elevations – Buildable Area (prepared by Morson Group, drawing number DA18, issue D)

14. East – West Elevations - Buildable Area (prepared by Morson Group, drawing number DA19, issue D)

         Landscaping plans, prepared by Paul Scrivener Landscapes, job ref. 21/2237, revision H, dated 17 November 2022

15. Landscape Site Analysis Plan (sheet 1 of 6)

16. Ground Floor Plan (sheet 2 of 6)

17. Planting Plan (sheet 3 of 6)

18. Notes and Details (sheet 4 of 6)

19. Garden Lighting Plan (sheet 5 of 6)

20. Wastewater Dispersion Zone Plan (sheet 6 of 6)

         Other documents

21. Arboricultural Impact Appraisal and Method Statement, prepared by Naturally Trees, revision B, dated 21 November 2022 (as further amended, and submitted on 23 November 2022)

22. Onsite Wastewater Report, prepared by GSL Environmental, job ref. 28821, revision F, dated 21 November 2022 (with section 4.5 as further amended on 21 November 2022)

23. Integrated Bushfire and Vegetation Management Plan, prepared by Land Eco Consulting, dated 22 November 2022

24. Construction Traffic Management Plan, prepared by Stanbury Traffic Planning, job ref. 22-076, dated November 2022

25. Flora and Fauna Impact Assessment Report, prepared by Land Eco Consulting, dated 17 November 2022

26. BASIX certificate, number 1250182S_05, prepared by Partners Energy Management, dated 17 November 2022

27. Updated Bushfire Assessment Report, job ref. 220623D, prepared by Building Code & Bushfire Hazard Solutions, dated 16 November 2022;

2. the Applicant has uploaded the amended application on the NSW planning portal on 24 November 2022; and

3. the Applicant subsequently filed the amended application with the Court on 24 November 2022.

Orders

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/147/2022 for the construction of a dwelling house, swimming pool, driveway and associated landscaping at Lot 5 in Deposited Plan 243183, 16 Karalee Road, Galston NSW 2159, as amended above, is determined by the granting of consent subject to the conditions marked Annexure "A".

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (1488008, pdf)

**********

Decision last updated: 02 December 2022