PRJM Pty Ltd v Hawkesbury City Council (No.2)

[2017] NSWLEC 1434

Land and Environment Court

New South Wales

Medium Neutral Citation:	PRJM Pty Ltd v Hawkesbury City Council (No.2) [2017] NSWLEC 1434
Hearing dates:	8,9,10 February 2017, 1 May 2017, final orders stayed for amended conditions 30 June 2017
Date of orders:	15 August 2017
Decision date:	15 August 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application DA0830/15 that proposes a 37 lot community title subdivision, including the construction of a new private road, drainage system and installation of a water recycling facility to treat sewage at 67 Kurrajong Road, Kurrajong is approved subject to the conditions in Annexure A. 3. The exhibits are re4turned with the exception of exhibits 1, B,C and D.
Catchwords:	DEVELOPMENT APPLICATION: subdivision - inconsistent with some aims of the local environmental plan - inconsistent with some objectives of the zone - impact on existing vegetation - inappropriate method of disposal of sewage - inadequate arrangements for water supply, stormwater disposal, waste collection and road access – appropriate conditions of consent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 2012 Sydney Regional Environmental Plan No 20-Hawkesbury-Nepean River (No 2-1997)
Category:	Principal judgment
Parties:	PRJM Pty Ltd (Applicant) Hawkesbury City Council.(Respondent)
Representation:	Counsel: Mr P Tomasetti SC (Applicant) Ms R McCullough (Respondent)   Solicitors: Brock Partners (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2016/162961
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA0830/15 that proposes a 37 lot community title subdivision at 67 Kurrajong Road, Kurrajong. The subdivision included the construction of a new private road, drainage system and installation of a water recycling facility to treat sewage. Two lots (Lots 1 and 21) would be used for these services and the remaining 35 lots would be used for residential development and range in size from 708 sqm to 1355 sqm.

Background

2. Following the hearing of the appeal on 8,9,10 February 2017 and 1 May 2017, final orders (PRJM Pty Ltd v Hawkesbury City Council [2017] NSWLEC 1339) were stayed to allow any submissions from the parties on conditions, given that the findings of the Court differed from that advocated by both parties. The relevant comments were:

89. I am satisfied that approval should be granted to the proposed subdivision but on terms different to that suggested by the applicant or the council. I have attempted to amend the conditions of consent to reflect the findings in the judgment however these amendments may require further amendment. I propose to stay the orders for a period of 14 days for the parties to review the conditions to ensure that they are consistent and properly reflect the findings in the judgment. The stay and the invitation to review the conditions is not an invitation to re-argue any of the contentions or make further submissions on matters already addressed.

90. The orders of the Court are:

Part A;

1. The appeal is upheld.

2. Development Application DA0830/15 for a 37 lot community title subdivision, including the construction of a new private road, drainage system and installation of a water recycling facility to treat sewage with two lots would be used for services and the remaining 35 lots would be used for residential development at. 67 Kurrajong Road, Kurrajong is approved subject to the conditions in Annexure A.

3.The exhibits are returned with the exception of exhibits 1, B, C and D.

Part B;

The orders in Part A are stayed for a period of 14 days from 30 June 2017 for the parties to make any written submissions on the conditions in Annexure A to ensure consistency and to ensure that they fully reflect the findings in the judgment. Final orders will be made in chambers.

The submissions

3. Condition 27 was in dispute between the parties. This applicants condition 27 states:

27. An approval under s.68 Local Government Act 1993 must be obtained from Council for the carrying out of sewerage work and the operation of a sewage management system.

4. The council condition 27 states:

27. Prior to issuing a Construction Certificate a licence under the Water Industry Competition Act 2006 must be obtained from IPART and an approval under s.68 Local Government Act 1993 must be obtained from Council for the carrying out of sewerage work and the operation of a sewage management system.

5. The council maintains that the IPART approval ought to be obtained before the issue of any construction certificate related to the subdivision for which consent has been granted. If the applicants condition was accepted it would permit of the possibility that a Construction Certificate could be obtained for the civil works associated with the subdivision and those works carried out, even though an IPART licence might never be granted for the sewerage system. Such a scenario would be contrary to cl 4.1D(1) Hawkesbury Local Environmental Plan 2012 which requires the consent authority to be satisfied about arrangements for a reticulated sewerage system from the date each lot is created and would not be consistent with the orderly and economic development of land.

6. I agree with the conclusions of the council on condition 27.

Orders

7. The orders of the Court are:

1. The appeal is upheld.

2. Development Application DA0830/15 for a 37 lot community title subdivision, including the construction of a new private road, drainage system and installation of a water recycling facility to treat sewage with two lots would be used for services and the remaining 35 lots would be used for residential development at. 67 Kurrajong Road, Kurrajong is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1, B,C and D.

_________

G Brown

Commissioner of the Court

162961.16 (C) gtb (225 KB, pdf)