Symin v The Hills Shire Council

[2024] NSWLEC 1840

Land and Environment Court

New South Wales

Medium Neutral Citation:

Symin v The Hills Shire Council [2024] NSWLEC 1840

Hearing dates:

Conciliation Conferences on 3 and 4 October 2024

Date of orders:

24 December 2024

Decision date:

24 December 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No. DA 893/2024/LD as amended, for the construction of a three-storey dwelling house with double car garage, in ground swimming pool and landscaping on the land at 81 Castle Hill Road, West Pennant Hills (legally known as Lot 1 DP 135622), subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – location above rail corridor – Sydney Metro – orders

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.7

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, ss 34, 34AA

Roads Act 1993, s 138

Environmental Planning and Assessment Regulation 2021, s 38

The Hills Local Environmental Plan 2019, cll 2.2, 2.3, 2,7, 4.3, 4.4, 7.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 7.7

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.119

Texts Cited:

NSW Rural Fire Services, Planning for Bush Fire Protection – 2019

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Dib Symin (Applicant)
The Hills Shire Council (First Respondent)
Sydney Metro (Second Respondent)

Representation:

Counsel:
L Sims (Applicant)
A Seton (Solicitor) (First Respondent)
D Webster (Solicitor) (Second Respondent)

Solicitors:
Lawfirm Pty Ltd (Applicant)
Marsdens Law Group (First Respondent)
Bick & Steele (Second Respondent)

File Number(s):

2024/165588

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Hills Shire Council of development application DA 893/2024/LD (the DA). The DA sought the construction of a three-storey dwelling house with double car garage, in ground swimming pool and landscaping on the land at 81 Castle Hill Road, West Pennant Hills (Lot 1 DP 135622) (the site).

2. The Hills Shire Council (the First Respondent) filed its Statement of Facts and Contentions (SOFAC) with the Court on 5 July 2024. Sydney Metro (the Second Respondent) filed its SOFAC with the Court on 13 August 2024. The Applicant filed a SOFAC in reply with the Court on 16 August 2024.

3. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 4 October 2024. I presided over the conciliation conference, which commenced with an on-site view. There were no submissions on the DA.

4. At the first day of the conciliation conference, the parties advised that they had reached an in-principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

6. The signed s 34 agreement and Annexure A (conditions of consent) and amended plans (the amended DA) were filed with the Court on 4 October 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites (Jurisdictional Statement). The Jurisdictional Statement was filed with the Court on 4 October 2024.

7. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondents in their SOFAC’s.

8. The amended DA includes revised architectural drawings, landscape plan and vegetation management plan, and a revised Piles Plan for the lower ground floor terrace of the proposed dwelling. The amendments include reducing the extent of the lowest terrace of the proposed dwelling and providing for a stormwater connection to the rear of the site. A vegetation management area has been defined at the rear of the proposed development.

9. Stormwater is to be dealt with through the imposition of a deferred commencement condition which will require the registration of a drainage easement or easement(s) over all downstream properties required to facilitate drainage to the watercourse on Lot 1 DP343971. (Refer to par [39]).

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

11. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

13. Owner’s consent was provided by the Applicant in the lodgement of the DA.

Community Participation (Sch 1, Div 2, subs 7(1) EPA Act)

14. The DA was notified by the First Respondent between 10 January and 1 February 2024. No submissions were received during the notification period.

Referral of DA under the State Environmental Planning Policy (Transport and Infrastructure) 2021

15. The DA was referred to Transport for NSW (TfNSW) for comment under s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport and Infrastructure SEPP) and concurrence under s 138 of the Roads Act 1993.

16. The DA was also referred to Sydney Metro pursuant to s 2.99 of the Transport and Infrastructure SEPP as the subject site is above a rail corridor, known as the Sydney Metro North West Line rail corridor, and the proposed development involves a penetration of the ground to a depth of at least 2 metres (m) below natural ground level.

17. Both TfNSW and Sydney Metro have issued letters of concurrence. Sydney Metro is also a party (the Second Respondent) to the s 34 agreement. (Refer to pars [32-37].

Referral of DA to NSW Rural Fire Service

18. The site is mapped as being bush fire prone, pursuant to s 4.14 of the EPA Act. The DA was referred to NSW Rural Fire Services who granted concurrence, subject to conditions.

Conditions

19. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

The Hills Local Environmental Plan 2019

20. The Hills Local Environmental Plan 2019 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. Dwelling houses are permissible in the R2 zone pursuant to cl 2.3 of the LEP;

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

21. Demolition is permissible pursuant to cl 2.7 of the LEP.

22. Clause 4.3 of the LEP relates to the maximum height of buildings on the site. The maximum height of buildings on the site is 9m. The parties agree that the height of the proposed development does not exceed 9m.

23. Clause 4.4 of the LEP relates to maximum floor space ratio. The site is not subject to any maximum floor space ratio pursuant to the Floor Space Ratio Map referred to in cl 4.4(2) of the LEP.

24. Clause 7.6 of the LEP relates to Landslide Risk and applies to the rear section of the site, as mapped on the Landslide Risk Map in the LEP.

25. Clause 7.6 of the LEP provides that a consent authority must not consent to the carrying out of any development on land unless it is satisfied that the development is designed, sited, constructed and will be managed to avoid any landslide risk and potential adverse impact on the development or on land in the vicinity of the development, and will appropriately manage stormwater and drainage across the site so as to not affect the rate, volume and quality of water leaving the land.

1. A geotechnical appraisal has been provided by the Applicant’s geotechnical engineer to answer the requirements of cl 7.6 of the LEP;

2. sufficient information has been submitted to determine that the development is suitable for the underlying geotechnical conditions of the site, being the objective of cl 7.6 of the LEP;

3. The design of the development is responsive to the constraints of the landslide risk including being responsive to the site layout, cut and fill requirements and stormwater and drainage management across the site; and

4. The Applicant’s geotechnical engineer proposes measures to stabilise the area of the site that is identified on the Landslide Risk Map in the LEP and these measures can form the conditions of consent to ensure the development is constructed in accordance with the geotechnical responsive design.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2 provides provisions regarding vegetation in non rural areas and applies to the site. The parties advise that the site is subject to biodiversity assessment pursuant to the Biodiversity Values Map.

27. The parties advise that the development has appropriately considered the values of all vegetation and trees on the site including those listed as within the Critically Endangered Ecological Community (Blue Gum High Forest), and the DA is supported by:

1. An Arborist Report prepared by Redgum Horticultural, which addresses the decline in trees and replacement planting as required by The Hill Development Control Plan 2012 (the DCP);

2. A Biodiversity Development Assessment Report pursuant to s 7.7(2) of the Biodiversity Conservation Act;

3. A Landscape Plan, which includes replacement planting including plantings from the Blue Gum High Forest community; and

4. A Vegetation Management Plan that demonstrates rehabilitation and maintenance of vegetation.

28. The parties also advise that all proposed replacement planting takes into consideration the requirements to:

1. implement geotechnical measures to stabilise the site to manage the landslide risk;

2. manage stormwater and drainage across the site; and

3. maintain bushfire inner protection zones pursuant to the NSW Rural Fire Services, Planning for Bush Fire Protection – 2019.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

30. The parties advise they agree that the site is suitable for the proposed development and agree that the requirements of s 4.6 of the Resilience and Hazards SEPP have been met.

31. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

32. Section 2.119 of the Transport and Infrastructure SEPP - Development with frontage to classified road applies to the development as the site adjoins a classified road, Castle Hill Road. Section 2.119(2) provides that the consent authority must not grant consent to the development on land that has a frontage to a classified road unless it is satisfied that the requirements of s 2.119(2)(a)-(c) are satisfied.

33. The DA (as initially amended) was re-referred to TfNSW on 11 March 2024. The proposed driveway location for the proposed development is in the same location as the existing driveway entry to the site. TfNSW issued correspondence to the First Respondent on 21 March 2024 providing recommended conditions of consent.

34. Section 2.99 of the Transport and Infrastructure SEPP relates to excavation in, above, below or adjacent to rail corridors. The proposed development is located above the Metro North West Line rail corridor and involves the penetration of the ground to a depth of at least 2m below ground level.

35. TfNSW has delegated its rail authority functions in relation to the Sydney Metro – City & Southwest and Metro North West Line rail corridors to Sydney Metro. Therefore, Sydney Metro is the relevant rail authority for the Metro North West Line rail corridor for the purpose of the Transport and Infrastructure SEPP. Sydney Metro is also the Second Respondent in this matter.

36. In its Statement of Facts and Contentions in Reply (dated 16August 2024), Sydney Metro required additional information relating to survey plans and cross-sections of the proposed development, and an engineering assessment to demonstrate that there would be no adverse impact on the rail infrastructure of the rail corridor.

37. The parties now advise that the Applicant has sufficiently addressed the requirements of s 2.99(4) of the Transport and Infrastructure SEPP in the amended DA, and that Sydney Metro has granted concurrence to the proposed development, subject to conditions which have been included in the development consent.

The Hills Development Control Plan 2012

38. The parties agree that the relevant requirements of the DCP have been considered and satisfied.

39. As noted at par [9], stormwater management on the site is to addressed with the imposition of a deferred commencement condition (condition 1), which will require the registration of a drainage easement or easement(s) over all downstream properties required to facilitate drainage to the watercourse on Lot 1 DP343971, located to the rear of the site. It is noted that these downstream properties are not part of the subject site and owners’ consent have not been obtained for any downstream stormwater management works.

40. The parties advise that they agree that requirements in the DCP relating to stormwater and landslide risk, have been addressed through:

1. A geotechnical appraisal has been provided by the Applicant’s geotechnical engineer to answer the requirements of cl 7.6 of the LEP;

2. Sufficient information has been submitted to determine that the development is suitable for the underlying geotechnical conditions of the site, being the objective of cl 7.6 of the LEP;

3. The design of the development is responsive to the constraints of the landslide risk including being responsive to the site layout, cut and fill requirements and stormwater and drainage management across the site; and

4. The Applicant’s geotechnical engineer proposes measures to stabilise the area of the site that is identified on the Landslide Risk Map and these measures can form the conditions of consent to ensure the development is constructed in accordance with the geotechnical responsive design.

Conclusion

41. Having considered the advice of the parties provided above at [13]-[40], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

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

3. approval of the proposed development is in the public interest.

42. 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.

43. 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 LEC Act to dispose of the proceedings in accordance with the parties’ decision.

44. The Court notes:

1. that the Hills Shire Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA 893/2024/LD made on 4 October 2024 to rely on the documents specified below:

• Architectural drawings prepared by Designcorp Architects Pty Ltd, Issue J, dated 3 October 2024;

• Arborist Report prepared by Redgum Horticultural dated 10 September 2024;

• Landscape Plan prepared by PlanDrew dated 3 October 2024;

• Biodiversity Development Assessment Report prepared by Fraser Ecological dated 19 September 2024;

• Vegetation Management Plan prepared by Fraser Ecological dated 3 October 2024;

• Swept path designs prepared by Motion Traffic Engineers;

• Geotechnical Investigation and Slope Risk Assessment Report prepared by CEC Geotechnical dated 11 September 2024;

• Geotechnical Investigation for Infiltration Tests (Absorption Rate) Report prepared by CEC Geotechnical dated 12 August 2024;

• Section drawing, Project GR23215 Revision D, prepared by Capital Engineering Consultants, dated 16 September 2024, verified by surveyor Sam Pyruz on 18 September 2024;

• Response to Statement of Facts and Contentions (SOFAC) reference with Sydney Metro, Reference GR23214, prepared by CEC Geotechnical, dated 16 September 2024;

• Geotechnical Assessment Report, Report no. GR23214, prepared by CEC Geotechnical, dated 23 September 2024;

• Piles Plan on Lower Ground Floor prepared by CEC, Revision B, dated 3 October 2024; and

• Survey plan of 81 Castle Hill Rd West Pennant Hills, prepared by Baissline Surveying Reference No. 2023-279, dated 29 August 2024.

2. The amended DA was filed with the Court on 4 October 2024.

45. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA 893/2024/LD as amended, for the construction of a three-storey dwelling house with double car garage, in ground swimming pool and landscaping on the land at 81 Castle Hill Road, West Pennant Hills (legally known as Lot 1 DP 135622), subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 24 December 2024