Taclam Pty Ltd v Hawkesbury City Council

[2023] NSWLEC 1559

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taclam Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1559

Hearing dates:

Conciliation Conference 7 June, 18 July, 1, 14 and 21 August 2023

Date of orders:

26 September 2023

Decision date:

26 September 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The applicant is to pay those costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1.

(2) The appeal is upheld.

(3) Development Application DA0193/22 lodged on 14 June 2022, as amended, relating to land identified as Lot 2 in DP 520343 and known as 76 Wilberforce Road, Wilberforce, is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Civil Procedure Act 2005, s 26

Environmental Planning and Assessment Act 1979, ss 4.46, 4.47, 8.7, 8.10, 8.14,

Environmental Planning and Assessment Regulation 2021, s 38

Hawkesbury Local Environmental Plan 2012, cll 5.21, 6.1, 6.4

Land and Environment Court Act 1979, ss 17, 34

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 4.6

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

Water Management Act 2000, s 91

Texts Cited:

Hawkesbury Development Control Plan 2002

Category:

Principal judgment

Parties:

Taclam Pty Ltd (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Low Doherty & Stratford Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/78535

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA0193/22) (Development Application) seeking consent for the construction of a new farm office and farm shed, additional boat ramp, landscaping and civil and environmental works on land presently used as a turf farm and identified as Lot 2 in Deposited Plan 520343, known as 76 Wilberforce Road, Wilberforce (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

3. There are presently related Class 4 proceedings on foot, being Hawkesbury City Council v Taclam Pty Ltd (2022/229661) (Class 4 Proceedings). The Summons in the Class 4 Proceedings relevantly seeks declarations and orders in connection with the respondent’s (being Taclam Pty Ltd in those proceedings) alleged unlawful waste disposal activities, construction of structures, carrying out of earthworks and removal of trees on the Site.

4. In addition, the applicant in these proceedings, submitted a Building Information Certificate Application (BIC-13136) on 22 December 2022 in respect of the structures erected without consent, the subject of the Class 4 Proceedings (BIC Application). The BIC Application is yet to be determined. The applicant has not commenced an appeal relating to the deemed refusal of the BIC Application.

5. The Development Application the subject of these proceedings, and the BIC Application, attempt in part, to resolve the issues raised in the Summons.

The Development Application

6. The Development Application was lodged with the respondent on 14 June 2022.

7. The respondent issued correspondence to the applicant raising concerns with the development and requesting further information on 23 June 2022.

8. Further information and documents were provided by the applicant between 27 July 2022 and 27 October 2022.

9. The development the subject of the Development Application is integrated development within the meaning of s 4.46 of the EPA Act as an approval is required under s 91 of the Water Management Act 2000 (WM Act).

10. On 9 March 2023, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

11. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 June, 18 July, 1, 14 and 21 August 2023. I presided over the conciliation conference. The Class 4 Proceedings were also listed for mediation under s 26 of the Civil Procedure Act 2005 on the same dates. I presided over the mediation.

12. Amended plans and documents were filed with the Court on 1 August 2023 and 20 September 2023 (Amended Development Application) cited at [55]. The amendments primarily related to the deletion of the proposed farm office.

13. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

14. 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.

Jurisdictional considerations

15. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

16. The applicant is the registered proprietor of the Site and provided consent to the Development Application when it was lodged with the respondent.

State Environmental Planning Policy (Resilience and Hazards) 2021 – coastal impacts

17. The Site is mapped as a “Coastal environmental area” under the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). This means that development consent must not be granted to development on land within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on a number of matters set out in subss 2.10(1) and (2) of the RH SEPP.

18. The Amended Development Application includes a Coastal Impacts Assessment prepared by Ecological Consultants Australia Pty Ltd dated May 2023 which considers, amongst other things, s 2.10 of the RH SEPP (Coastal Impacts Assessment).

19. The parties agree that the requirements of subss 2.10(1) and (2) of the RH SEPP are satisfied.

20. In determining the Amended Development Application, I have given consideration to the matters set out in s 2.10(1) and am satisfied of the matters set out in s 2.10(2) of the RH SEPP on the basis of the Coastal Impacts Assessment and agreement of the parties.

State Environmental Planning Policy (Resilience and Hazards) 2021 – contamination

21. Section 4.6(1) of the RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. 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

3. 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.

22. The Amended Development Application contains a number of relevant documents concerning the contamination status and proposed remediation of the Site including:

1. Preliminary Site Assessment Report prepared by EI Australia, dated 13 May 2022;

2. Detailed Site Assessment Report, prepared by EI Australia, dated 24 August 2022;

3. Remediation Action Plan, prepared by EI Australia, dated 13 October 2022; and

4. Targeted Detailed Site Investigation prepared by Coleman & Adams Environmental dated 25 May 2023,

(together, the Environmental Reports).

23. Further, the agreed conditions of consent address contamination and remediation (see condition 2 of Schedule 1B and condition 9 of Schedule 2).

24. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

25. Having regard to the Environmental Reports and agreed conditions of consent, I am satisfied that the Site will be made suitable, after remediation, for the purposes for which development consent is sought before the Site is used for those purposes.

State Environmental Planning Policy (Transport and Infrastructure) 2021

26. The Site has a “frontage to a classified road” for the purposes of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP). This means that a consent authority must not grant consent to development on the Site unless it is satisfied of the matters listed in s 2.119(2) of the TISEPP.

27. On or about 23 June 2022, the respondent referred the Development Application, as lodged, to Transport for NSW (TfNSW) for the purposes of s 2.119 of the TISEPP.

28. On 12 September 2022, TfNSW provided the following response in respect of the Development Application:

“TfNSW has reviewed the submission and raises no objections to the development proposal as it is unlikely to have a significant impact on the classified road network.”

29. Between 21 July 2023 and 24 July 2023, the respondent referred the Amended Development Application to TfNSW. The Amended Development Application includes a Traffic Impact Assessment Report and Updated Swept Paths prepared by PDC Consultants dated 19 May 2023 (collectively, Traffic Assessment). TfNSW has not provided any response in respect of the Amended Development Application.

30. Noting that this is not a matter where the concurrence of TfNSW is required, the parties agree that the requirements of s 2.119(2) of the TISEPP are satisfied.

31. In determining the Amended Development Application, I have given consideration to, and am satisfied of, the matters set out in s 2.119(2) of the TISEPP on the basis of the Traffic Assessment, previous comments of TfNSW (in circumstances where the Amended Development Application does not increase the impacts on the classified road from the original application considered by TfNSW), and agreement of the parties.

Hawkesbury Local Environmental Plan 2012

32. The Site is zoned RU2 Rural Landscape under the Hawkesbury Local Environmental Plan 2012 (HLEP). Accordingly, the existing turf farm use and development the subject of the Amended Development Application is permitted with consent in the RU2 zone (with the turf farm use being characterised as “agriculture” and within the subgenus of “intensive plant agriculture”). I have had regard to the zone objectives which are extracted below:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses in the zone and land uses in adjoining zones.

• 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.

• To ensure that development retains or enhances existing landscape values including a distinctive agricultural component.

• To preserve the river valley systems, scenic corridors, wooded ridges, escarpments, environmentally sensitive areas and other features of scenic quality.

• To ensure that development does not detract from the existing rural character or create unreasonable demands for the provision or extension of public amenities and services.

33. The Site is in a “flood planning area” for the purposes of cl 5.21 of the HLEP. This means that development consent must not be granted to development on the Site unless the consent authority is satisfied of the matters listed in cl 5.21(2) having regard to the matters required to be considered in cl 5.21(3) of the HLEP.

34. The Amended Development Application is accompanied by the following relevant documents:

1. Statement of Environmental Effects, prepared by Claron Consulting, dated 26 May 2022;

2. Structural report, prepared by Top Consulting Group, dated 24 May 2022; and

3. An additional structural report, prepared by Top Consulting Group, dated 17 May 2023,

(together, the Relevant Flooding Reports).

35. The parties agree that the requirements of subcll 5.21(2) and (3) of the HLEP are satisfied.

36. In determining the Amended Development Application, I have given consideration to, and am satisfied of, the matters set out in subcll 5.21(2) and (3) of the HLEP on the basis of the Relevant Flooding Reports and agreement of the parties.

37. The Amended Development Application included an Acid Sulfate Soils Management Plan prepared by Coleman & Adams Environmental dated 23 May 2023. The parties agree that the requirements of cl 6.1(3) of the HLEP relating to the preparation of an acid sulfate soils management plan are satisfied.

38. The Site is identified on the Terrestrial Biodiversity Map pursuant to cl 6.4 of the HLEP. This means that before determining a development application relating to the Site, the consent authority must consider a number of factors set out in cl 6.4(3) and be satisfied of a number of matters set out in cl 6.4(4) of the HLEP.

39. The Amended Development Application includes the following relevant documents:

1. Vegetation Management and Landscape Plan prepared by Ecological Consultants Australia Pty Ltd, dated May 2022; and

2. Updated Vegetation Management and Landscape Plan, prepared by Ecological Consultants Australia Pty Ltd, dated 24 May 2023,

3. (together, the Vegetation Reports).

40. The parties agree that the requirements of cl 6.4 of the HLEP are satisfied.

41. In determining the Amended Development Application, I have given consideration to, and am satisfied of, the matters set out in subcll 6.4(3) and (4) of the HLEP on the basis of the Vegetation Reports and agreement of the parties.

Hawkesbury Development Control Plan 2002

42. The Development Application was notified between 5 July and 19 July 2022 in accordance with the requirements of the Hawkesbury Development Control Plan 2002 (Hawkesbury DCP). No submissions were received during this period.

43. The parties are satisfied that all relevant provisions of the Hawkesbury DCP have been taken into consideration and are satisfied.

WM Act

44. Pursuant to s 91(2) of the WM Act, “a controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land”.

45. The Site adjoins the Hawkesbury River, and is subsequently within 40m of a river, therefore falling within the definition of “waterfront land” under the WM Act.

46. On or about 23 June 2022, the respondent referred the Development Application, as lodged, to the Department of Planning and Environment (DPE) for the purposes of ss 4.46 and 4.47 of the EPA Act and s 91(2) of the WM Act.

47. On 19 January 2023, DPE issued general terms of approval (GTAs) in relation to the Development Application, subject to conditions. The DPE’s response is incorporated into the conditions of consent.

48. Between 21 July 2023 and 24 July 2023, the respondent referred the Amended Development Application to DPE.

49. Between 21 July and 24 July 2023, DPE confirmed that the GTAs issued on 19 January 2023, were unchanged with respect to the Amended Development Application.

50. The parties agree that the:

1. Agreed conditions of consent incorporate the GTAs (see Condition 1 of Schedule 2); and

2. Requirements of s 4.47(3) of the EPA Act are satisfied.

Class 4 Proceedings

51. As set out above at [3], the related Class 4 Proceedings have yet to be resolved. However, the parties have prepared agreed orders for the determination and finalisation of the Class 4 Proceedings which will be dealt with separately following the grant of consent to the development the subject of these proceedings.

BIC Application

52. As set out above at [4], the applicant’s BIC Application is yet to be determined. However, the respondent has advised that it intends to issue a Building Information Certificate in respect of the existing farm building on the Site immediately upon the grant of development consent to the Amended Development Application. In this respect, I note that condition 3 of Schedule 1A of the agreed conditions of consent, being a deferred commencement condition, requires a Building Information Certificate to be obtained from the respondent in relation to all unauthorised building works undertaken at the Site within three months of the grant of consent.

Conclusion

53. 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.

54. 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.

55. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38 of the EPA Regulation, to the applicant amending its development application so as to rely on the following amended materials:

Document Description	Prepared By	Date
Letter	Claron Consulting Pty Ltd	14 December 2022
Letter	Claron Consulting Pty Ltd	20 July 2023
Level and Detail Survey	McKinlay Morgan & Associates Pty Ltd	24 March 2023
Architectural Plans	Argent Design	14 June 2023
Acid Sulphate Soil Management Plan	Coleman & Adams Environmental	25 March 2023
Civil Engineering Design	SGC Consulting Engineers	22 June 2023
Certification for the Shed	Transcivic Engineering	27 June 2023
Targeted Detailed Site Investigation	Coleman & Adams Environmental	25 May 2023
SEPP Coastal Impact Assessment Report	Ecological Consultants Australia Pty Ltd	May 2023
Vegetation Management Plan	Ecological Consultants Australia Pty Ltd	April 2023
Tree Inspection Report	Our Garden Path Pty Ltd	22 June 2023
Traffic Impact Assessment Report	PDC Consultants	19 May 2023
Structural Report	Top Consulting Group	17 May 2023

2. The applicant filed the amended plans and documents outlined above with the Court on 1 August 2023 and 20 September 2023.

3. The respondent intends to issue a building information certificate in respect of Building Information Certificate Application BIC-13136 for a farm shed on land identified as Lot 2 in DP 520343 and known as 76 Wilberforce Road, Wilberforce, immediately upon the grant of development consent to Development Application DA0193/22.

Orders

56. The Court orders that:

1. The applicant is to pay those costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1.

2. The appeal is upheld.

3. Development Application DA0193/22 lodged on 14 June 2022, as amended, relating to land identified as Lot 2 in DP 520343 and known as 76 Wilberforce Road, Wilberforce, is determined by the grant of consent subject to conditions contained in Annexure “A”.

N Targett

Acting Commissioner of the Court

Annexure A

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Decision last updated: 26 September 2023