TIC Investments NSW Pty Ltd v Hornsby Shire Council

[2024] NSWLEC 1443

Land and Environment Court

New South Wales

Medium Neutral Citation:

TIC Investments NSW Pty Ltd v Hornsby Shire Council [2024] NSWLEC 1443

Hearing dates:

Conciliation conference on 16 and 26 July 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent no. DA/259/2020 is modified in the terms set out in Annexure A.

(3) Development consent no. DA/259/2020, as modified, is Annexure B.

Catchwords:

APPEAL – modification application – amendments to acoustic fencing and associated conditions – application to modify approved consent for a 70-place childcare centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 107, 113

Hornsby Local Environmental Plan 2013

State Environmental Planning Policy (Biodiversity and Conservations) 2021, Chs 2, 6

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4

State Environmental Planning Policy (Transport and Infrastructure) 2021

Cases Cited:

TIC Investments NSW Pty Ltd v Hornsby Shire Council [2021] NSWLEC 1694

Texts Cited:

Hornsby Development Control Plan 2013

Category:

Principal judgment

Parties:

TIC Investments NSW Pty Ltd (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Local Government Legal (Respondent)

File Number(s):

2024/38080

Publication restriction:

Nil

JUDGMENT

1. These proceedings concern an application for the modification of a development consent (DA/259/2020) granted by the Court on 16 November 2021 in the matter of TIC Investments NSW Pty Ltd v Hornsby Shire Council [2021] NSWLEC 1694 (original consent).

2. The original consent approved the construction of a purpose-built addition to a dwelling house and change of use to a 70-place childcare centre with an at-grade and basement carpark and associated landscaping at 181-183 Beecroft Road, Cheltenham (site).

3. The modification application (DA/259/2020/A) proposes the amendment of conditions 21 and 65 of the original consent concerning an acoustic fence and acoustic testing and certification.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 July 2024. I presided over the conciliation conference.

5. During that process, the Council approved, under s 113(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the applicant amending its modification application to rely upon the following plans (amended application):

Plan Ref	Date	Description	Issue
Architectural plans prepared by Gardner Wetherill Associates
DA27	19.07.24	Beecroft Road Elevation	F
DA28	19.07.24	Acoustic Fence Detail	F
DA29	19.07.24	Acoustic Fence Detail	F
DA35	19.07.24	Acoustic Barrier Plan	A

6. As the amended fence design has resolved the contentions between the parties the applicant has filed the amended application with the Court on 26 July 2024.

7. Having resolved the contentions, the parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters.

Owner’s consent

8. Owner’s consent was given to the Council for lodgement of the application (Tab 2 of the Class 1 Application).

Notification

9. The modification application was notified by the Council between 12 July 2023 and 2 August 2023. The Council received four submissions by way of objection during the notification period.

EPA Act

10. Section 4.56 of the EPA Act enables a consent authority to modify a development consent granted by the Court. The parties submit and I accept that each of the requirements in s 4.56(1) have been met as follows:

1. In relation to s 4.56(1)(a), the Council is satisfied that the development as modified is substantially the same development as the development for which consent was originally granted.

2. In relation to s 4.56(1)(b)(i), the modification application was notified for a period of 21 days, which is the same period of time as the original application was notified, in accordance with s 107(2)(b) of the EPA Regulation and the Hornsby Development Control Plan 2013 (DCP) to any persons who made a submission on the original application.

3. In relation to s 4.56(1)(c), each person who made a submission in respect of the original DA/259/2020 was notified in writing of the modification application.

4. In relation to s 4.56(1)(d), four submissions were received and have been considered by the parties. The objections raised the following matters:

1. Concerns regarding the safety of children within the outdoor play area (Area 1) adjacent to Beecroft Road, and more specifically:

1. Condition number 65c) should not be deleted as it is important this requirement is met for the safety of children.

2. The approved outdoor play area is in close proximity to a busy road which should not have been approved and is considered an unnecessary risk for children.

3. The fumes from vehicles along Beecroft Road is also a concern for the health of children.

2. The Council has the responsibility to ensure that the development does not adversely impact the health and hearing of children and should not be altering conditions of consent to suit the developer.

11. The Council informs me that it has considered the objections raised by the submitters in writing and at the site view at the commencement of the s34 conciliation and is satisfied that the relevant planning concerns have been addressed by the proposed amendments.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

12. The TI SEPP applies to the development as the site has a frontage to a classified road, Beecroft Road.

13. The modification application does not seek development consent therefore, there are no relevant further or additional considerations under the TI SEPP beyond what was considered with the original approval.

State Environmental Planning Policy (Biodiversity and Conservations) 2021 (BC SEPP)

14. Chapter 2 of the BC SEPP deals with vegetation in non-rural areas. The aims of Ch 2 are:

• To protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and

• To preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation

15. The parties submit and I accept that the conditions imposed on the modification application are sufficient to protect and preserve the existing trees and vegetation on the site.

16. Chapter 6 of the BC SEPP deals with Water Catchments and applies to this development as the site is located in the Sydney Harbour Catchment.

17. The modification application does not give rise to any further or additional considerations of the BC SEPP beyond what was considered with the original approval.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

18. The site is subject to the provisions in Ch 4 of the RH SEPP (Remediation of land).

19. The modification application does not give rise to any further or additional considerations of the RH SEPP beyond what was considered with the original approval.

Heritage

20. The site is situated in the Beecroft-Cheltenham Conservation Area. The site contains a heritage item (Item 267 – Garden) and is within the immediate vicinity of heritage listed properties at No. 179 Beecroft Road (Item. 266 – Former church and grounds), No. 174 Beecroft Road (Item No. 265 - House) and No. 170 Beecroft Road (Item No. 264 - House).

21. The parties submit and I accept that the modification application has no adverse effect on the Beecroft-Cheltenham Conservation Area and the heritage sites on, and within the immediate vicinity of, the site.

22. The modification application does not give rise to any further or additional considerations of the Hornsby Local Environmental Plan 2013 beyond what was considered with the original approval.

23. The relevant provisions of the HDCP have been considered in the Council’s assessment of the modification application as required by ss 4.55(3) and 4.15(1)(a)(iii) of the EPA Act.

Conclusion and orders

24. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

25. The Court orders:

1. The appeal is upheld.

2. Development consent no. DA/259/2020 is modified in the terms set out in Annexure A.

3. Development consent no. DA/259/2020, as modified, is Annexure B.

…………………….

S Dixon

Senior Commissioner of the Court

Annexure A (197147, pdf)

Annexure B (370270, pdf)

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Decision last updated: 26 July 2024