Trueclad as trustee to the Galea Family Trust v Hornsby Shire Council

[2008] NSWLEC 1107

Land and Environment Court

of New South Wales

CITATION:	Trueclad as trustee to the Galea Family Trust v Hornsby Shire Council [2008] NSWLEC 1107
PARTIES:	APPLICANT Trueclad as trustee to the Galea Family Trust RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10816 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consent orders
DATES OF HEARING:	26 February 2008
EX TEMPORE JUDGMENT DATE:	26 February 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr G McKee, solicitor McKees Legal Solutions RESPONDENT Mr T Pickup, solicitor Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

26 February 2008

10816 of 2007 Trueclad as trustee to the Galea Family Trust v Hornsby Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: Trueclad originally proposed a subdivision of the land owned by it at 124 Castle Hill Road, West Pennant Hills into six residential allotments and a community title allotment. As the council did not deal with that application within the time period required by the Environmental Planning and Assessment Act 1979, an appeal against the deemed refusal of that application was lodged with the court.

2 The applicant and the council have now reached agreement on the acceptability of an amended application for five residential allotments and a community title allotment. The community title allotment will enable preservation of a significant element of the remnant part of the Sydney Blue Gum High Forest located on the site and the proposed conditions of consent will also add to the protection of the elements of the Sydney Blue Gum High Forest that are not merely on the proposed community property but also on parts of three of the proposed residential allotments.

3 I have had provided to me a copy of the various objections which were lodged, to the original proposal, by residents to the north and to the east of 124 Castle Hill Road. Those were objections to the six residential allotment subdivision and to the proposal which would have permitted, as part of that application, the erection of two dwellings on nominated parts of the site. The proposal for two dwellings is no longer part of the application.

4 There are a range of matters contained in the letters of objection, all of which I have considered and been taken through by Mr Pickup, solicitor for the council, and Mr McKee, solicitor for the applicant. Many of those objections relate to issues to be considered by the council at the time of development applications for dwellings on any of the proposed allotments. All I need to be satisfied of at the present time is that dwelling footprints consistent with the requirements of the council’s Residential Development Control Plan are available on each of the proposed residential allotments. I have been provided with a survey plan which indicates that this is the case.

5 In response to a question from me, Mr Pickup advised me that Mr Mahoney, town planner for the council (who would be available to give evidence if I had required it), has instructed Mr Pickup that appropriate boundary setbacks as well as setbacks from the trees are available for each of the five building footprints identified.

6 One of the objections raises the question of compliance with the character of the Residential A Low Density zone within which the site is located. Mr Mahoney’s written statement of evidence deals with objective (c) of the zone objectives, that is that the development should meet the environmental capacities of a low density residential environment.

7 However, one of the objectors raises the question of whether in fact the subdivision pattern proposed is compatible with the low density residential environment envisaged in objective (b). I have been taken to the provisions of the density specifications of the Local Environmental Plan contained in clause 14 which make it clear that the minimum area per allotment in the Residential A Low Density zone is to be 500 sq m. I am satisfied that the allotments numbered 2, 3 and 4 each comply with that minimum allotment size and allotments 5 and 6 significantly exceed that minimum size - those five allotments being those upon which residences are proposed. I am therefore satisfied that there is no conflict between the proposed subdivision and the objectives of the zone.

8 I note that the other matters raised in the letters are ones which concern vegetation on the site. The first questions are raised by Ms Jupp and Mr and Mrs Stewart concerning tree 14 being a tree on the eastern boundary approximately a third of the way into the site from Castle Hill Road. Those who have made submissions seek the removal of that tree because of its possible damage to power and sewer services provided to properties to the east. The council and the applicant do not object to the removal of this tree. However it is not clear from the plans available to me whether the totality of the tree is located on the applicant’s site. Therefore the tree will be included in the schedule of trees to be removed but its removal is to be subject to the clarification of, and if necessary obtaining of owner’s consent from, any person other than the applicant who owns a portion of the tree.

9 The other matter which is raised generally concerns the Blue Gum High Forest remnants. I am satisfied that there are appropriate conditions for the management and preservation of those trees during the construction phase and on an ongoing basis. These are contained in the conditions of consent firstly at the construction phase by provisions contained in conditions 57 to 62 and the provisions in conditions 68 to 74. The ongoing vegetation management provisions are contained in condition 75 and onward. I am satisfied that they provide an appropriate basis for permitting the proposed subdivision.

10 Finally I note that Mr and Mrs Stewart raise the question, in their letter of 13 December 2007, of an opportunity possibly being made available to them to incorporate their stormwater drainage arrangements into those proposed for the applicant’s site. That is not a matter properly to be dealt with by the court as part of my consideration of the proposed consent orders. However, I note that Mr McKee has undertaken to draw this matter to the attention of his client and will provide a response to the Stewarts concerning their request.

11 As a consequence of all of the forgoing, I am satisfied that it is appropriate to make the consent orders sought. Therefore, subject to the filing of an electronic version of the conditions incorporating the proposed amendments to condition 70 relating to tree 14, the appeal will be upheld by consent and development consent will be granted to Development Application 902/2007 for the demolition of an existing dwelling and community title subdivision of one lot into five residential lots and one community lot at lot 3 deposited plan 18922 being 124 Castle Hill Road, West Pennant Hills subject to the conditions which will be filed electronically with the court and appended to the consent orders.

Tim Moore

Commissioner of the Court