Wheatley v The Hills Shire Council

[2024] NSWLEC 1656

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wheatley v The Hills Shire Council [2024] NSWLEC 1656

Hearing dates:

Conciliation conference on 26 August 2024

Date of orders:

22 October 2024

Decision date:

22 October 2024

Jurisdiction:

Class 1

Before:

Nichols AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The cl 4.6 request for variation to the subdivision controls in cl 4.1AA(3A) of The Hills Local Environmental Plan 2019, prepared by Cohesive Planning dated September 2023, is upheld.

(3) Development application DA1522/2023/ZD, for the subdivision of one lot into five community title rural residential lots and one association lot (rural cluster) including demolition, is determined by the grant of development consent subject to the conditions included at Annexure A.

(4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act (1979) the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.

Catchwords:

APPEAL – development application – rural residential ­– rural cluster – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997

Environmental Planning and Assessment Regulation 2021, s 38

The Hills Local Environmental Plan 2011, cll 2.6, 4.1AA, 4.6, 7.2

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2, cl 2.3, 2.7

Cases Cited:

Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

James John Wheatley (First Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
R Bonic (Respondent)

Solicitors:
McKees Legal Solution (Applicants)
Hall & Wilcox (Respondent)

File Number(s):

2023/221466

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the refusal of Development Application No. DA1522/2023/ZD by The Hills Shire Council on 21 June 2023. This appeal concerns a development application for subdivision creating five community title rural residential lots and one community association lot (rural cluster) of land at 513 Wisemans Ferry Road, Cattai (Lot 2, DP517761).

2. The proposal also seeks consent for civil works including bulk earthworks, demolition, construction of a new private/community road, drainage infrastructure and services.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 August 2024. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application. These amendments included a revision of the Subdivision Plans, Arboricultural Impact Assessment and Wastewater Management Report. The amendments also included seeking consent for removal of dead trees.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

Jurisdiction

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice I make the following findings in relation to jurisdiction.

9. I accept the parties’ advice that The Hills Local Environmental Plan 2019 (THLEP) applies to the site. Subdivision is permissible with consent under cl 2.6.

10. The majority of the site is within the RU2 Rural Landscape Zone. A smaller portion of the site is within a SP2 Infrastructure Zone. The proposal is permissible under the applicable zonings.

11. The proposed development does not comply with the development standards for the carrying out of community title subdivision development in cl 4.1AA (3A)(a) of the THLEP in relation to the minimum size of the land to be subdivided. The minimum lot size for community title subdivision is not achieved and the minimum lot yield is not achieved.

12. The development standard that applies in cl 4.1AA(3A)(a) of the THLEP for a community title subdivision is a minimum of 10 hectares. The lot size of the subject land is 9.873 hectares. This is a 1.27% non-compliance.

13. As a result of this minimum lot size non-compliance, the minimum lot yield of one lot per two hectares for a community title subdivision required by cl 4.1AA(3A)(c) of the THLEP is also not achieved. The lot yield proposed is one lot per 1.976 hectares.

14. A written request authored by Cohesive Planning in accordance with cl 4.6 of the THLEP accompanies the DA as amended, dated September 2023, and I am satisfied that it demonstrates that compliance with the ‘exceptions to minimum lot sizes for certain residential development’ standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of  the development standard, notwithstanding the non-compliance. The objectives of cl 4.1AA, relating to minimum subdivision lot size for community title schemes, are as follows:

1. to ensure that land to which this clause applies is not fragmented by inappropriate subdivisions that would create additional dwelling entitlements,

2. to encourage rural cluster subdivision that will ensure the land is developed, managed and conserved in a holistic and sensitive manner where affected by biodiversity.

15. In regard to the first objective, I am satisfied the written request adequately demonstrates that the proposal achieves the objective through its demonstration that the contravention is minor in nature and will not result in an adverse impact to the character of the locality nor will the land be inappropriately fragmented by inappropriate subdivision.

16. I am satisfied the second objective is adequately addressed by the written request through its demonstration that the land will be developed, managed and conserved in a holistic and sensitive manner supporting terrestrial biodiversity. The biodiversity mapped land will be managed and conserved in perpetuity.

17. I am satisfied written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contravention of the development standard and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the development controls relating to lot size and lot yield.

Earthworks

18. Clause 7.2(3) of the THLEP lists matters that must be considered by the consent authority before granting development consent for earthworks. From the parties’ submissions and the Civil Works Plans by CHRISP Consulting dated 21 December 2023 (C201-202, Rev E) I am satisfied that these matters have been adequately considered.

Protection of the landscape, biodiversity and rural setting of the land

19. Section 4.1AA(3B)(a) and (b) of the THLEP specifies consent must not be granted for development on land that has been subdivided under subclause (3A) unless it is satisfied that appropriate management measures will be in place that will ensure the protection of the landscape, biodiversity and rural setting of the land and that productive agricultural land will not be lost. From the parties’ submissions and the Ecology Joint Report filed on 15 July and the Revised Wastewater Management Plan by Larry Cook Consulting dated 21 July 2024, I am satisfied that through the conditions of consent, appropriate management measures have been put in place to ensure the protection of the landscape, biodiversity and rural setting of the land, and that there will be no productive agricultural land lost.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

20. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the land is contaminated, and if the land is contaminated ensure that they are satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted. Based on the information contained within the Site Investigation by Compaction and Soil Testing Service Pty Ltd, dated 11 September 2023 and the parties’ submissions, I accept that the subject site is suitable for the intended use, subject to the implementation of the relevant conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

21. In relation to the removal of dead trees, Pt 2, s 2.7(4)(a) of State Environmental Planning Policy (Biodiversity and Conservation SEPP) 2021 applies to the land and states that consent is not required for removal of dying or dead vegetation. Based on the information contained within the Revised Arboricultural Impact Assessment Rev G dated 14 July 2024 annexed to the Ecology Joint Report and the parties’ submissions, I accept that these matters have been adequately considered and, subject to the relevant conditions of consent, that further consent is not required for the removal of the trees identified in the above reports as dead or dying.

Rural Fires Act 1997

22. Section 100B(3) of the Rural Fires Act 1997 requires a Bushfire Safety Authority be obtained from the Commissioner of the NSW Rural Fire Service (NSW RFS) before residential development in bushfire prone land. I accept advice of the parties that this consent was obtained, and General Terms of Approval (GTAs) were issued by the NSW RFS. I am satisfied consent for subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes has been obtained.

23. I note and accept the parties’ advice that the Development Application was notified in accordance with the EPA Act. No submissions were received.

Conclusion

24. Having reached the state of satisfaction that the decision is one that the Court could make in the proper exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders I make below have this effect.

25. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

26. The court notes that:

1. The Hills Shire Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA1522/2023/ZD to rely upon the plans and documents in Condition 1 of Annexure A.

2. The Applicant filed the amended development application with the Court on 23 April 2024.

Orders

27. The Court orders that:

1. The appeal is upheld.

2. The cl 4.6 request for variation to the subdivision controls in cl 4.1AA(3A) of The Hills Local Environmental Plan 2019, prepared by Cohesive Planning dated September 2023, is upheld.

3. Development Application DA1522/2023/ZD, for the subdivision of one lot into five community title rural residential lots and one association lot (rural cluster) including demolition, is determined by the grant of development consent subject to the conditions included at Annexure A.

4. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act (1979) the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.

……………………….

P Nichols

Acting Commissioner of the Court

Annexure A

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Decision last updated: 22 October 2024