Upg 186 Pty Ltd v Hawkesbury City Council

Case •

[2023] NSWLEC 1678

•

14 November 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: UPG 186 Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1678
Hearing dates: Conciliation Conference on 27 October 2023
Date of orders: 14 November 2023
Decision date: 14 November 2023
Jurisdiction:Class 1
Before: Espinosa C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA0213/22, as amended, for the demolition of existing structures, tree removal, earthworks, construction of public roads, stormwater drainage works, landscaping and a Torrens Title subdivision of land creating 93 residential lots in 3 stages and two (2) residue lots, on land legally described as Lot 4, Lot 7 and Lot 8 in DP 25173, Lot 1 and Lot 3 in DP 1274576, and Lot 32 in DP577668, also described as 40, 48, and 54 Boundary Road and 40, 42, and 56 Harkness Road, Oakville NSW 2765, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – Torren title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 8

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Pts 4, 5

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

National Parks and Wildlife Act 1974, s 90

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 6.65, Ch 9, Pt 9.2

State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 12, ss 2.6, 2.7, 4.1, 4.1AC, 4.1I, 6.1, 6.8

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy Amendment (Water Catchments) 2022, Ch 6

Threatened Species Conservation Act 1995, s 126H

Water Management Act 2000, s 91

Texts Cited:

Hawkesbury City Council Community Participation Plan (September 2019)

Threatened Species Conservation Act 1995 Order to confer biodiversity certification on the State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Category:Principal judgment
Parties: UPG 186 Pty Ltd (Applicant)
Hawkesbury City Council (Respondent)
Representation:

Counsel:
J Smith (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2022/286978
Publication restriction: Nil

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 deemed refusal of development application DA0213/22 the demolition of existing structures, earthworks, construction of roads, service infrastructure and landscaping, subdivision of land into 93 residential lots and 1 super lot over two stages at Lot 7 in DP 25173 known as 48 Boundary Road, Oakville NSW 2765 and Lot 8 in DP 25173 known as 54 Boundary Road, Oakville NSW 2765 (the Site).

  2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 October 2023. I presided over the conciliation conference.

  3. 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.

  4. The parties participated in a conciliation conference pursuant to s 34 of the LEC Act on 15 March 2023 which was ultimately terminated on 31 May 2023. On 30 August 2023, the Applicant was granted leave of the Court to formally amend the proposed development in response to Council’s Statement of Facts and Contention (SOFAC) filed 14 December 2022 with the documents contained in Exhibit EJF-1 to the Affidavit of Emma Flemming dated 21 August 2023. The Applicant seeks consent for the demolition of existing structures, earthworks, construction of roads, service infrastructure and landscaping, staged subdivision of land into 95 lots, comprising 93 residential lots and two (2) lots for future road construction, over three stages (Proposed Development) at the Site.

  5. In addition to the work proposed on the Site, the Proposed Development now proposes associated works (including tree removal and earthwork battering) on the following adjoining parcels of land:

  1. Lot 1 in DP 1274576 and known as 40 Boundary Road, Oakville NSW 2765;

  1. Lot 1 in DP 1274576 is owned by R.C. Mobbs & Son Pty Ltd. Landowner’s consent has been provided behind Tab 2 of the Class 1 Application

  1. Lot 3 DP 1274576, with a street address of 40 Harkness Road, Oakville NSW 2765 and Lot 4 DP 25173, with a street address of 42 Harkness Road, Oakville NSW 2765;

  1. Lot 3 DP 1274576 and Lot 4 DP 25173 are owned by Allam Property Group. Landowner’s consent has been provided behind Tab 4 of Exhibit EJF-1.

  1. Lot 32 DP 577668, with a street address of 56 Harkness Road, Oakville NSW 2765

  1. Lot 32 DP577668 is owned by Trevet Property Pty Ltd. Landowner’s consent has been provided behind Tab 10 of Exhibit EJF-1.

  1. As the matter is the subject of Court proceedings, the Proposed Development is not required to be lodged on the NSW Planning Portal (see s 38(4) of the Environmental Planning and Assessment Regulation 2021).

  2. The Respondent filed its Amended SOFAC on 22 September 2023. The Amended SOFAC confirms that the Proposed Development has resolved all of Council’s issues, subject to the imposition of conditions of consent and the parties filed an agreement pursuant to s 34 of the LEC Act on 26 October 2023.

  3. 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.

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

  5. 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 and explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement. I have referred to the jurisdictional statement in this judgment to support my reasons as to being able to exercise this function because the jurisdictional prerequisites have been satisfied.

  6. The development application was notified in accordance with the Respondent’s Community Participation Plan for a period of 30 days commencing on 14 September 2022 to 14 October 2022. No objections were received during the notification period. The Proposed Development was renotified for a period of 14 days commencing on 16 September 2023. No submissions have been made by way of objection during the renotification period.

  7. As the Proposed Development in integrated development, the NSW Rural Fire Services issued a Bushfire Safety Authority and general terms of approval for the development pursuant to s100B of the Rural Fires Act 1997 on 4 November 2022, subject to conditions. Those conditions are included within the conditions of consent.

  8. Heritage NSW issued general terms of approval for the Proposed Development pursuant to s 90 of the National Parks and Wildlife Act 1974 on 4 April 2023. Those conditions are included within the conditions of consent.

  9. The NSW Department of Planning and Environment – Water, pursuant to s 91 of the Water Management Act 2000 advised as follows:

“The Department of Planning and Environment – Water has reviewed the documents for the above development application and considers that, for the purposes of the Water Management Act 2000 (WM Act), a controlled activity approval is not required for the proposed works and no further assessment by this agency is necessary.”

  1. Section 126H of the (now repealed) Threatened Species Conservation Act 1995 (TSC Act) states that “the Minister may, by order published in the Gazette, confer biodiversity certification on specified land.” The biodiversity certification under the TSC Act remains in force under the Biodiversity Conservation Act 2016 (BC Act) and is taken to be biodiversity certification conferred on the land under Pt 8 of the BC Act. Biodiversity certification enlivens dispensation from the requirements to assess, and for the consent authority to take into consideration, the likely impact of biodiversity of the proposed development to be carried out on that land. On 14 December 2007, an Order issued by the Minister on 11 December 2027 was gazetted to confer biodiversity certification on the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, pursuant to section 126H of the TSC Act (the Order). The Order relevantly states:

“Schedule 1

Conditions of Biodiversity Certification

Definitions

In Schedules 1 to 4:

…

“certified area” means an area marked as a certified area on a biodiversity certification map.

...

Areas subject to biodiversity certification

5. Pursuant to section 126H of the Act, the biodiversity certification of the SEPP is limited to the certified areas.

Note: Pursuant to section 126I of the Act, developments or activities proposed to be undertaken within the certified areas do not need to undertake assessment of impacts on threatened species, populations and ecological communities, or their habitats, that would normally be required by Part 4 or 5 of the Environmental Planning and Assessment Act 1979.

…

10. In the non-certified areas, proposals to clear existing native vegetation shall be subject to the relevant development controls in the SEPP and Sydney Regional Environmental Plan No. 31 – Regional Parklands, and the requirements of the Environmental Planning and Assessment Act 1979.”

  1. The Site is identified on the biodiversity certification map for the North West Growth Centre in Schedule 2 of the Order. As such, an assessment is not required to be undertaken as part of this development application in relation to impacts on threatened species, populations and ecological communities, or their habitats, that would normally be required by Pt 4 or 5 of the EPA Act.

  2. The State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City Precincts SEPP) is the relevant local environmental planning instrument that applies to the Site. In particular, Appendix 12 (Hawkesbury Growth Centres Precinct Plan) of the Central River City Precincts SEPP (Precinct Plan) applies to the Site.

  3. Compliance with the Precinct Plan is addressed generally in the Statement of Environmental Effects prepared by The Bathla Group dated June 2022 filed with the Class 1 Application on 26 September 2022 at Tab 4, but specific provisions are addressed below.

  4. The Site is zoned R2 Low Density Residential under the Precinct Plan.

  5. Demolition works are permissible with consent under s 2.7 of the Precinct Plan.

  6. Subdivision works are permissible with consent under s 2.6 of the Precinct Plan. There is no minimum subdivision lot size identified on the Lot Size Map referred to in s 4.1 of the Precinct Plan. Section 4.1AC (Minimum lot sizes for residential development) applies to the Site and prescribes a minimum lot size for a dwelling house is 300m2 if the dwelling density range is shown on the Residential Density Map as “O2”. The Site is mapped as “O2” and all proposed residential lots have a lot size of at least 300m2, which will enable future development for dwelling houses to comply with s 4.1AC(3) of the Precinct Plan.

  7. Section 4.1I (Residential density) of the Precinct Plan applies to the Site and prescribes a dwelling density range of 15 to 18 dwellings per hectare. The proposed dwelling density under the Proposed Development is 17.8 dwellings per hectare, and therefore complies with Section 4.1I(2).

  8. Water and sewer, electricity and telecommunication services are available at the Site. The Proposed Development will be connected to all essential services. The required utility clearances will be obtained prior to works commencing on the Site. The Council, and the Court, are satisfied that the essential services will be made available to the Proposed Development when required subject to the conditions of consent satisfying the terms of s 6.1 of the Precinct Plan.

  9. The Site is mapped as affected by Class 5 acid sulfate soils and in relation to s 6.8 of the Precinct Plan, no works are proposed to be below 5 metres Australian Height Datum (AHD) and the watertable is not likely to be lowered below 1 metre AHD.

  10. 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 a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. A Stage 1 – Preliminary Site Contamination Investigation Report has been prepared for the Site by Geotesta dated 26 October 2021 and filed with the Class 1 Application under Tab 15, which concludes that the Site is considered to have a low risk of contamination, however, recommended additional sampling to address some data gaps. A Stage 2 – Detailed Site Investigation has been prepared for the Site by Sydney Environmental Group dated 24 February 2023 filed 21 August 2023, which confirms that the Site is considered generally suitable for the proposed low density residential development.

  11. The Proposed Development proposes the removal of the existing trees within the Site. A Preliminary Tree Assessment has been prepared to assess these trees. The Proposed Development provides landscaping embellishing work in the form of street trees. The proposed landscaping will positively contribute to the cohesiveness of the area whilst providing relief from the proposed roads which achieves the aims and objectives of Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP).

  12. The State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP) commenced on 21 November 2022 and served to repeal the previous Chs 6 to 12 of the Biodiversity and Conservation SEPP and insert a new Ch 6 titled “Water Catchments”.

  13. The development application, the subject of these proceedings, was lodged on 28 June 2022, prior to the commencement of the Water Catchments Amendment SEPP. This appeal was commenced on the deemed refusal of the development application lodged by the Applicant and as such has not yet been fully determined and the former Chapters of the Biodiversity and Conservation SEPP apply pursuant to s 6.65 of the Biodiversity and Conservation SEPP.

  14. Accordingly, former Ch 9 (Hawkesbury-Nepean River) of the Biodiversity and Conservation SEPP applies to the Proposed Development and the matters for consideration under Pt 9.2 have been addressed in the following reports which accompany the Proposed Development:

  1. Aboriginal Due Diligence Assessment prepared by Apex Archaeology dated 14 July 2021;

  2. Aboriginal Cultural Heritage Assessment Report prepared by Apex Archaeology dated 26 July 2023;

  3. Bushfire Protection Assessment prepared by Travers Bushfire & Ecology dated 7 February 2022;

  4. Flood Impact Assessment prepared by Orion Consulting dated 29 June 2023;

  5. Stormwater Management Report prepared by Orion Consulting dated 21 October 2021;

  6. Stage 1 – Preliminary Site Investigation Report prepared by Geotesta dated 26 October 2021;

  7. Stage 2 – Detailed Site Investigation prepared by Sydney Environmental Group dated 24 February 2023; and

  8. Civil engineering plans prepared by Orion Consulting dated 29 June 2023.

  1. 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.

  2. 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.

Orders:

  1. The Court orders:

  1. The appeal is upheld.

  2. Development consent is granted to Development Application No. DA0213/22, as amended, for the demolition of existing structures, tree removal, earthworks, construction of public roads, stormwater drainage works, landscaping and a Torrens Title subdivision of land creating 93 residential lots in 3 stages and two (2) residue lots, on land legally described as Lot 4, Lot 7 and Lot 8 in DP 25173, Lot 1 and Lot 3 in DP 1274576, and Lot 32 in DP577668, also described as 40, 48, and 54 Boundary Road and 40, 42, and 56 Harkness Road, Oakville NSW 2765, subject to the conditions at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (1500557, pdf)

Engineering Plans (17921964, pdf)

Subdivision Plan (3226706, pdf)

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Decision last updated: 14 November 2023

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