Urban Pacific Somerset Pty Ltd v Hornsby Shire Council

[2006] NSWLEC 582

Land and Environment Court

of New South Wales

CITATION:	Urban Pacific Somerset Pty Ltd v Hornsby Shire Council [2006] NSWLEC 582
PARTIES:	APPLICANT Urban Pacific Somerset Pty Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10248 and 10250 of 2006
CORAM:	Moore C
KEY ISSUES:	Deemed Refusal - Development Application :- Consent orders .
DATES OF HEARING:	31 July and 30 August 2006
EX TEMPORE JUDGMENT DATE:	08/30/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr M Driscoll, solicitor (31 July) Deacons Ms S Duggan, barrister (30 August) INSTRUCTED BY Deacons RESPONDENT Mr P Jackson, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

30 August 2006

Nos. 10248 & 50 of 2006 Urban Pacific Somerset Pty Ltd 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: These two matters are appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against deemed refusals by Hornsby Shire Council (the council) – deemed refusals which are subsequently proposed to be cured by the entering into of consent orders – for Stages Two and Three of the subdivision of land which is located at the eastern end and to the north of the eastern end of Somerset Street, Epping (the site). Stage Two is to be accessed from Somerset Street and Stage Three is to be accessed from Devon Street.

2 I had the opportunity of inspecting the site with the parties and their representatives and advisers. During the course of that site view on 31 July, I was informed that the matter had been resolved to the satisfaction of the parties.

3 As the terms of Practice Direction 23, dealing with consent orders, had not been complied with in that the proposed conditions of consent had not been provided to the objectors, I adjourned the matter to enable a number of things to occur.

4 The first of those was that the council was to notify the objectors of the terms of the proposed consent orders in each matter and the conditions obtaining to each of those consents. I am satisfied, on the basis of documents tendered by Mr Jackson, solicitor on behalf of the council, that those notifications were properly and adequately given in terms of the relevant paragraphs of the Practice Direction (including notification of the intention to hold a further hearing to enable to objectors to be heard further if they wished to be so heard).

5 I also had the opportunity, during the course of the site view, to hear from several of the objectors about their concerns.

6 I have in evidence this morning joint statements, in each of the applications, from the arborists indicating that they are satisfied as to the terms of the tree retention and other tree matters relating to the two stages of the subdivision.

7 Although the council consents to the two subdivisions, there is remaining in contention, between the ecological experts, Mr Lembit on behalf of the council and Dr Robertson on behalf of the applicant, an issue as to whether there has been sufficient bushland preserved as part of the community title allotment in the Stage Two subdivision.

8 The position that is proposed by the consents is the preservation of the area proposed, coupled with the acceptance by the council of an offer for assistance in the rehabilitation and revegetation of land owned by the council adjacent to Epping Oval to the west of Stage Two and in the unmade portion of Somerset Street to the south and south east of Stage Two, coupled with propagation of an endangered plant which occurs on the site and is to be propagated and included in the revegetation program. This is an insufficient response to bushland retention, in Mr Lembit’s view, but a sufficient response in Dr Robertson’s view. Mr Lembit argues for the deletion of the entirety of Lot 13. That position is not supported by the council.

9 I am satisfied that Dr Robertson’s position should prevail – the test being acceptability rather than excellence of design. Faced with the conflict of evidence and my observation of the site and the degree of weed invasion that was evidenced from the walking of the pathway from Devon Street to Somerset Street, I am satisfied that at the standard of acceptability which is proposed by the applicant and accepted by the council is appropriate. I would not therefore require the deletion of Lot 13 and its incorporation in the community title lot.

10 The objectors raised a number of other matters.

11 The first related to a proposal that the entirety of the site should be retained as bushland. It being in private ownership that is a matter which it is neither proper nor possible for me to contemplate.

12 A second issue raised by residents was that a pathway across the allotment and turning to the west as used by residents to the north east of the site as a means of accessing Epping Oval and a through path from approximately the north eastern centre of the combined sites through to Somerset Street should be retained. These are used by the residents as a means of both a short cut and a more at grade method of accessing local community facilities. It was put to me that that access from the end of Gregory Avenue to Somerset Street should be retained by my requiring the applicant to dedicate pathways through what is proposed to be Lot 1 in Stage Two and along the boundary between Lots 5 and 6 or 4 and 5 in Stage Two to enable that access to both the oval and to Somerset Street to be retained.

13 I am satisfied that, even if I had the power to do so (and I have some reservations as to whether, in fact, I would have the power to require the dedication of that land to public ownership), if I were to do so it would be a dedication of no effect.

14 The reason for that is that at the end of Gregory Avenue, as a matter of fact and at law, part of the path over which the residents seek access is across land which falls within Strata Plan 71375. At the present time, the residents who use the short cut have what might be regarded as grace and favour access over the land in that Strata Plan and also have grace and favour access, perhaps only passively, over the land which is the subject of this application.

15 However, even if I had the power to require the creation of those pathways over the site, there would be no legal effect in providing complete access and I am therefore satisfied that as a matter of practicality, even if I had power, it would be a futility to do so. I therefore decline to accede to that request.

16 The third matter that was raised on behalf of the residents was concern as to traffic volumes in both Somerset Street and in Devon Street. The residents of Devon Street and Grigg Avenue, particularly, put the proposition that access to the totality of the subdivision should be required through Somerset Street – understandably a proposition, as I apprehended it, not enthusiastically embraced by the residents of Somerset Street.

17 I am satisfied that the design of the two elements of the subdivision that are before me represent both an appropriate and safe balancing of the traffic generation that will be occasioned by the addition of these further residences in this vicinity.

18 Indeed, the council offers no traffic evidence and I have no other expert evidence that would cause me to conclude that the addition of 13 allotments adding traffic to Somerset Street and the nine allotments adding traffic to Devon Street and its associated network of roads would constitute an unreasonable additional traffic burden.

19 The applicant has, as a consequence of matters raised during the inspection, agreed to undertake a number of measures to improve sight lines at the exit from Stage Three into Devon Street and I am satisfied that that represents an appropriate response to those issues.

20 I am therefore satisfied that it would be appropriate to uphold, by consent, the appeal in each matter and to grant development consent subject to the amended conditions agreed to between the parties to the two proposals. The exhibits, other than Exhibits 1, 2, A and B, are returned.

Tim Moore

Commissioner of the Court