Upg 186 Pty Ltd v Hawkesbury City Council - [2023] NSWLEC 1678

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

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).
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.
At the conciliation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Upg 186 Pty Ltd v Hawkesbury City Council

Details

AGLC: Upg 186 Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1678
Case: [2023] NSWLEC 1678
Decision Date: 14 November 2023

CaseChat Overview and Summary

Upg 186 Pty Ltd appealed to the Land and Environment Court of New South Wales against the decision of Hawkesbury City Council to refuse development consent for a residential subdivision. The proposed development included the demolition of existing structures, removal of trees, earthworks, construction of public roads, stormwater drainage, landscaping, and a Torrens Title subdivision creating 93 residential lots in three stages and two residue lots. The applicant sought development consent for the land 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, located at 40, 48, and 54 Boundary Road and 40, 42, and 56 Harkness Road, Oakville NSW 2765. The central legal issue before the court was whether the refusal of development consent by the council was legally justified and in accordance with the relevant planning and environmental laws. This involved examining whether the council's decision was based on proper consideration of the relevant planning policies, environmental impact, and other statutory requirements.

The court considered various factors, including the alignment of the proposed roads, the impact on the existing landscape, and the adequacy of the stormwater management plans. It assessed whether the applicant had adequately demonstrated compliance with the Hawkesbury City Local Environmental Plan and other relevant legislation. The court concluded that the council's refusal of development consent was not justified as the applicant had addressed the relevant planning considerations and provided adequate mitigation measures for the environmental impacts. The court found that the proposal was consistent with the zoning and planning policies and did not significantly harm the environment. Therefore, the appeal was upheld, and development consent was granted subject to the conditions set out in Annexure A.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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