Rathee v Hawkesbury City Council

[2022] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rathee v Hawkesbury City Council [2022] NSWLEC 1342

Hearing dates:

Conciliation conference held on 23 May 2022

Date of orders:

01 July 2022

Decision date:

01 July 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The Appeal is upheld

(2) Development Application 0367/2021, as amended, for the demolition of existing structures and removal of vegetation, subdivision of land to create to 39 Torrens Title residential lots and a residue lot for the temporary stormwater basin, construction of roads, landscaping works, utilities servicing, dam dewatering and battering works on land legally described as Lot 6 DP 253872, known as 305 Commercial Road Oakville 2765, Lot 7 DP578758 known as 293 Commercial Road, Oakville and Lot 5 DP253872, known as 21 Harkness Road, Oakville, is determined by grant of consent, subject to conditions set out in Annexure A.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 8

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Precincts – Central River City) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Threatened Species Conservation Act 1995, s12G

Texts Cited:

Hawkesbury Development Control Plan 2002

Category:

Principal judgment

Parties:

Sushil Rathee (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
A Johnson (Solicitor) (Applicant)
J Corridini-Bird (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/41056

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 0367/2021 by the Hawkesbury City Council (hereafter the Council), which seeks demolition of structures, removal of trees, Torrens title subdivision into 40 lots, being 39 lots for residential and one residual lot for stormwater, and construction of associated drainage/earth/civil works on Lot 6 DP 253872, known as 305 Commercial Road Oakville 2765, Lot 7 DP578758 known as 293 Commercial Road, Oakville and Lot 5 DP253872, known as 21 Harkness Road, Oakville (together hereafter the ‘site’).

Background

2. The DA was submitted to Council on 16 December 2021.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference for the appeal, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), with an onsite view as requested by the parties, and thereafter conducted by Microsoft Teams.

5. Based on the amended DA, expert advice and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 0367/2021, with conditions.

6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, to grant consent to DA 0367/2021, subject to conditions described in Annexure ‘A’.

Jurisdictional prerequisites

7. Pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the applicant has satisfied the provision of written consent from all landowners for works proposed and relied on by the amended DA.

8. The site is identified as ‘bushfire prone’ land. Section 4.14 of the EPA Act establishes a requirement to consider the relevant specifications relating to development on bushfire prone land. The amended DA is supported by a Bushfire Hazard Assessment Report and the conditions of consent address the required bushfire protection measures. The Rural Fire Service have provided General Terms of Approval (GTA’s), which are adopted in the conditions of consent.

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court:

1. Biodiversity Conservation Act 2016 (BC Act):

1. A biodiversity order made by the Minister for Environment applies to the land, issued under s12G of the Threatened Species Conservation Act 1995 (TSC Act). The biodiversity order is consistent with the certification requirements of Pt 8 of the BC Act, which replaced the TSC Act.

2. State Environmental Planning Policy (Precincts – Central River City) 2021 (SEPP Precincts):

1. Pursuant to the SEPP Precincts, the proposed subdivision and associated works are situated over land zoned R2 Low Density Residential and SP2 Infrastructure. The application as described to the Court is permissible with consent within the respective land use zones and addresses the objectives of these zones. The amended application is supported by appropriate documents, and sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP Precincts.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to cl 4.6 of the SEPP Resilience, the site must be deemed suitable, or can be made suitable for the proposed use, as assessed prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, including contamination assessment reports (Stages 1 and 2), which are supported by the agreed conditions of consent, to address the requirements of cl 4.6 of the SEPP Resilience.

4. State Environmental Planning Policy (Biodiversity & Conservation) 2021 (SEPP Biodiversity):

1. The amended application sufficiently addresses the relevant provisions described in the Biodiversity SEPP.

5. Hawkesbury Development Control Plan 2002 (HDCP):

1. The relevant requirements of the HDCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The original proposed development was publicly notified in accordance with the HDCP, and no submissions were received by Council.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that consent to DA 0367/2021 should be granted, specifically as it satisfies the relevant requirements of ss 4.14 and 4.15 of the EPA Act.

13. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

14. The Court notes that:

1. The Council, as the relevant consent authority, has agreed pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to amend Development Application 0367/2021, with the amended plans and documents uploaded on the NSW Planning Portal on 21 and 22 June 2022.

2. The documents uploaded to the NSW Planning Portal, which amend the DA, were filed with the Court on or before 23 June 2022.

15. The Court orders:

1. The Appeal is upheld.

2. Development Application 0367/2021, as amended, for the demolition of existing structures and removal of vegetation, subdivision of land to create to 39 Torrens Title residential lots and a residue lot for the temporary stormwater basin, construction of roads, landscaping works, utilities servicing, dam dewatering and battering works on land legally described as Lot 6 DP 253872, known as 305 Commercial Road Oakville 2765, Lot 7 DP578758 known as 293 Commercial Road, Oakville and Lot 5 DP253872, known as 21 Harkness Road, Oakville, is determined by grant of consent, subject to conditions set out in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (813485, pdf)

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Decision last updated: 01 July 2022