Tie v Hornsby Shire Council

[2024] NSWLEC 1546

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tie v Hornsby Shire Council [2024] NSWLEC 1546

Hearing dates:

Conciliation Conference 27 and 28 August 2024

Date of orders:

05 September 2024

Decision date:

05 September 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The written request pursuant to cl 4.6 of the Hornsby Local Environmental Plan 2013 seeking a variation to the height of building standard of 8.5m, prepared by Andrew Martin Planning dated May 2024, is upheld.

(2)   The appeal is upheld;

(3)   The Development Application DA/461/2023 is determined by grant of consent for the demolition of existing structures, Torrens title subdivision of one allotment into two lots and the construction of a two-storey dwelling house on each lot at Lot 1 DP 228900, known as 4A Carrington Street, Wahroonga subject to the conditions contained at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – Torrens title subdivision - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Pt 4

Land and Environment Court Act 1979, ss 17, 34, 34AA, 39

Local Land Services Act 2013, s 60O

Hornsby Local Environmental Plan 2013, cll 2.3, 2.6, 2.7, 4.3, 4.6, 6.1

Environmental Planning and Assessment Regulation 2021, ss 27, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.7, 6.6, 6.7, Chs 2, 6

Category:

Principal judgment

Parties:

Filippus Tie (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor)(Applicant)
B Lennox (Solicitor)(Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Storey and Gough (Respondent)

File Number(s):

2024/54455

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/461/2023 (DA) lodged 2 June 2023 for the demolition of existing structures, Torrens title subdivision of one allotment into two and the construction of a two-storey dwelling house on each lot (the Proposed Development) at 4A Carrington Street Wahroonga legally described as Lot 1 in DP228900 (the Site).

2. On 18 December 2023 the Applicant lodged a Section 8.2 Review Application DAR/461/2024 (DAR) with the Respondent Council. The reports and plans provided with the DAR have been further amended, mostly with respect to the stormwater engineering details.

3. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 and 28 August 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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. The parties advise the court that all contentions are resolved and that the objectors’ concerns have been considered in reaching the agreement pursuant to s 34 of the LEC Act.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Hornsby Local Environmental Plan 2013 (HLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement.

8. The Court may dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the LEC Act. Pursuant to s 39(2) of the LEC Act, the Court has all the functions and discretions that the Respondent had as the consent authority in respect of the development application.

9. The DA was notified by the Respondent between 6 June 2023 and 27 June 2023. The Respondent received 3 submissions by way of objection during the notification period. The DAR was notified by the Respondent between 4 January 2024 and 26 January 2024. The Respondent received 2 submissions by way of objection during the notification period.

10. The Court was provided with a copy of the 3 submissions during the June 2023 notification and all 3 objectors were present and spoke at the on site view at the commencement of the proceedings on 27 August 2024. The objectors were advised that the parties had entered into a s 34 Agreement prior to the conciliation conference and of the details of the proposed development as amended. The objectors provided their oral concerns to the parties and Court on the site.

11. Owner’s consent was given for lodgement of the Development Application as evidenced in the owner’s consent letter filed with the Class 1 Application at Tab 2.

12. Also filed with the Class 1 Application at Tab 17, is a BASIX Certificate for dwelling 1 dated 19 May 2023 and at Tab 18 is a BASIX Certificate for dwelling 2 dated 19 May 2023 as required by s 27 of the Environmental Planning and Assessment Regulation 2021.

13. The DAR was accompanied by a BASIX Certificate dated 2 December 2023 for dwelling 1 and a BASIX Certificate dated 2 December 2023 for dwelling 2 as required by s 27 of the Environmental Planning and Assessment Regulation 2021. These BASIX Certificates are included as documents for which leave is to be sought with the s 34 agreement.

14. The Site is zoned R2 Low Density Residential pursuant to cl 2.3 of the HLEP and the proposed dwelling houses are permissible. Demolition is permissible with consent in accordance with cl 2.7 of the HLEP and subdivision is permissible with consent in accordance with cl 2.6 of the HLEP.

15. The Statement of Environmental Effects provides, at p 6, that the Site is not bushfire or flood prone and is not burdened by any easements or restrictions. The Site does not contain a heritage item, is not in the vicinity of a heritage listed item and is not located within a heritage conservation area.

16. Regarding Acid Sulfate Soils, the parties explain that the Site is on Map 17 of the HLEP and in the Acid Sulfate Soils Map, there is no Map 17. The Site does not contain Acid Sulfate Soils. Therefore cl 6.1 of the HLEP is not relevant.

17. Clause 4.1 of the HLEP prescribes that the minimum area per allotment within the R2 Low Density Residential zone is 500 m². The Proposed Development complies because Lot 1 has area of 504.9m² and Lot 2 has an area of 503.8m².

18. The Buildings Map referred to in cl 4.3 of the HLEP sets a maximum building height development standard of 8.5m for the Site. Dwelling 1 does not exceed 8.5m whereas Dwelling 2 exceeds the maximum building height at 9.06m due to an in-ground swimming pool. The Applicant relies on a Clause 4.6 written request prepared by Andrew Martin dated August 2024 to justify the contravention of the development standard (Written Request).

19. The parties have considered the Written Request and are of the view that the height breach is acceptable pursuant to cl 4.6 of the HLEP for the reasons set out in the Written Request.

20. I have read the Written Request and am satisfied that the applicant’s Written Request seeking to justify the contravention of the building height development standard in cl 4.3 of the HLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the HLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the building height development standard and with the objectives for development within the R2 Low Density Residential zone in which the development is proposed to be carried out.

21. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires a consent authority to consider if land is contaminated. The Statement of Environmental Effects dated May 2023 filed with the Class 1 Application provides, at p 14, that the Site has a long and established history of residential use and that no further soil assessment is required given that the Site has not been used for any other purpose other than for residential development. Accordingly, the parties accept the long term residential use of the site and consider that the land is unlikely to be contaminated and the parties agree that further investigation is not required.

22. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) deals with vegetation in non-rural areas and the Proposed Development seeks consent to remove trees, however a permit or approval to clear vegetation is not required under Ch 2 of the Biodiversity and Conservation SEPP as the tree removal will be authorised under a development consent under Part 4 of the EPA Act (see s 2.7, Biodiversity and Conservation SEPP and s 60O, Local Land Services Act 2013).

23. Chapter 6 of the Biodiversity and Conservation SEPP deals with Water Catchments and water quality. The Respondent provided the Court with an assessment of the development application regarding this chapter dated 27 August 2024 and concludes that the Site is located in the Hawkesbury Nepean Catchment and that:

“subject to the implementation of sediment and erosion control measures and stormwater catchment to protect water quality, the proposal would not impact on the water quality of the catchment and would comply with the requirements of chapter 6 of the Biodiversity and Conservation SEPP.

As the approved plans includes a sediment and erosion control plan and there are conditions ensuring sediment and erosion control measure are install, Council is of the opinion that the application would comply with the relevant requirements of Chapter 6 of the B & C SEPP, being clauses 6.6 and 6.7.”

24. In addition to this assessment by council, I have had regard to the stormwater plans prepared by CAM Consulting dated 17 July 2024 in order to form the state of satisfaction required by s 6.6 of the Biodiversity and Conservation SEPP regarding water quality and quantity and by s 6.7 of the Biodiversity and Conservation SEPP regarding aquatic ecology.

25. 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. I adopt the reasons given by the parties as set out in this judgment.

26. 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.

Notations:

27. The Court notes:

1. The Court notes that Hornsby Council, as the relevant consent authority, approves under s 38 of the Environmental Planning and Assessment Regulation 2021 the Applicant amending Development Application No DA/461/2023 to include the following plans:

Plan Ref	Date	Description	Issue
Subdivision Plans prepared by Chadwick Cheng Consulting Surveyors
43072/D-PSU	15.12.23	Plan of Subdivision
43072/D-PSU-DR	12.06.24	Plan of Subdivision (showing building and driveway envelope)
Architectural Plans prepared by FT+A Architects
2002/01	18.07.24	Site Plan	O
2002/ 01.1	18.07.24	Site Plan & Layout	O
2002/02	14.05.24	Dwelling 01 Ground Floor Plan	H
2002/03	14.05.24	Dwelling 01 First Floor Plan	H
2002/04	14.05.24	East & South Elevations – Dwelling 01	H
2002/05	14.05.24	West & North Elevations – Dwelling 01	H
2002/06	14.05.24	Long & Cross Sections – Dwelling 01	H
2002/07	14.05.24	Dwelling 02 Ground Floor Plan	H
2002/08	14.05.24	Dwelling 02 Attic Floor Plan	H
2002/09	14.05.24	South & West Elevations – Dwelling 02	H
2002/10	14.05.24	North & East Elevations – Dwelling 02	H
2002/11	14.05.24	Long & Cross Sections – Dwelling 02	G
Landscape Plans prepared by Conzept Landscape Architects
LPDA 22 - 218 / 1	24.06.24	Hardscape Plan	K
LPDA 22 - 218 / 2	24.06.24	Landscape Plan	K
LPDA 22 - 218 / 3	24.06.24	Details	K
LPDA 22 - 218 / 4	24.06.24	Details Section A-A	K
LPDA 22 - 218 / 5	24.06.24	Specification	K
Stormwater Plans prepared by CAM Consulting
C21250 – SW 100	17.07.24	Cover	Y
C21250 – SW 101	17.07.24	Sediment & Erosion Control Plan	Y
C21250 – SW 102	17.07.24	Ground Floor Layout and Details	Y
C21250 – SW 103	17.07.24	Stormwater Outlet Drainage Plan & Drains Catchment Plan	Y
C21250 – SW 104	17.07.24	Drainage Catchment Plan	Y
C21250 – SW 105	17.07.24	Stormwater Sections and Details	Y
C21250 – SW 106	17.07.24	Stormwater Driveway & Pipe Long Section	Y
C21250 – SW 107	17.07.24	Stormwater Driveway & Pipe Long Section	Y
Amended Arborist Report Revision A prepared by Naturally Trees dated 14 December 2023
Amended Clause 4.6 prepared by Andrew Martin Planning dated August 2024
Surveyors Plans prepared by Chadwick Cheng Consulting Engineers
43072 / D	16.04.24	Plan Showing Details & Levels sheet 1 of 2
43072 / D	16.04.24	Plan Showing Details & Levels sheet 2 of 2
BASIX CERTIFICATES
02.12.23	BASIX Certificate: 1393298S_02
02.12.23	BASIX Certificate: 1393299S_03

Orders:

28. The Court orders:

1. The written request pursuant to cl 4.6 of the Hornsby Local Environmental Plan 2013 seeking a variation to the height of building standard of 8.5m, prepared by Andrew Martin Planning dated May 2024, is upheld.

2. The appeal is upheld;

3. The Development Application DA/461/2023 is determined by grant of consent for the demolition of existing structures, Torrens title subdivision of one allotment into two lots and the construction of a two-storey dwelling house on each lot at Lot 1 DP 228900, known as 4A Carrington Street, Wahroonga subject to the conditions contained at Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 05 September 2024