Zhang v Hornsby Shire Council

[2024] NSWLEC 1157

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Hornsby Shire Council [2024] NSWLEC 1157

Hearing dates:

Conciliation conference on 12 February and 4 March 2024

Date of orders:

09 April 2024

Decision date:

09 April 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA/205/2023 for Torrens title subdivision of the site into three lots, driveway construction, stormwater drainage work, tree removal and landscaping at 4 Coventry Crescent, North Epping (Lot 16 DP 28407) is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – Torrens title subdivision – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Hornsby Local Environmental Plan 2013, cll 2.6, 4.1, 5.21, 6.2

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

Category:

Principal judgment

Parties:

Xiaoyan Zhang (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
A Pickup (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Pickup Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/232622

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Hornsby Shire Council, of Development Application DA205/2023, which sought approval for a three lot subdivision at 4 Coventry Crescent, North Epping, legally known as Lot 16 DP 28407.

2. Specifically, the proposal seeks the subdivision of the site in to three Torrens title lots, construction of a new 3m wide accessway and a common turning area, minor earthworks to create a drainage channel across the rear of proposed Lot 3, and the removal of 38 trees to accommodate these works.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 12 February and 4 March 2024. I presided over the conciliation conference, after which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to conditions.

5. 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. 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 of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

6. The development application was made with the written consent of the owner, Mr Xiaoyan Zhang.

7. Stormwater from the site must connect to Council’s stormwater pit located in Woodvale Avenue. To make this connection, an easement is required over a downstream property, however this is not requested as part of this application and therefore owner’s consent for the adjacent property is not required. This easement is required as a deferred commencement condition of this application, as per condition 4 of Annexure A.

8. The development application was adequately notified in accordance with the Council’s Community Participation Plan. Two objectors made oral submissions at the commencement of this conciliation conference and the parties submit, and I accept, that the issues raised in these submissions have been taken into consideration and are addressed by the amended application and agreed conditions of consent.

9. Pursuant to the Hornsby Local Environmental Plan 2013 (HLEP), the site is zoned R2 Low Density Residential, within which development for the purposes of dwelling houses is permitted with consent. The proposed development is consistent with the objectives of this zone.

10. Subdivision is permitted with consent pursuant to HLEP cl 2.6.

11. As demonstrated by the subdivision plan in the amended application, drawing DWG – 1 of 1, Rev. F dated 14 March 2024, the three proposed lots will comply with the minimum lot size of 500m², as required pursuant to HLEP cl 4.1 and the Lot Size Map.

12. The site is identified as flood affected, and part of the proposed Lot 3 is affected by the 1% AEP Flood Extent. The parties submit, and I accept, that the matters listed in HLEP cl 5.21(3) have been considered, and that the proposed development both satisfies the requirements of cl 5.21(2) and the objectives of cl 5.21(1). The application proposes a drainage channel that will enable the development to proceed without adversely affecting flood behaviour on the site, or on upstream or downstream properties.

13. To facilitate the construction of this drainage channel and the new accessway, minor earthworks are required and are requested as part of this application. The parties submit, and I accept, that consideration has been given to the matters listed in HLEP cl 6.2(3), and these matters are adequately addressed and the requirements of HLEP cl 6.2 are met by the proposed development.

14. The parties submit, and I accept, that the site is adequately supplied with all relevant essential services including water, electricity, sewer, stormwater drainage and vehicular access.

15. Section 4.6 of SEPP Resilience and Hazards requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties’ submission, I accept that the site has been historically used for residential purposes and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose.

16. For these reasons, 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.

17. As the parties’ decision is one 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.

18. The Court notes:

1. Hornsby Shire Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA/205/2023 in accordance with the following documents:

Reference No.	Title	Prepared by	Dated
Project No. AWCS-221021, Rev. F	Subdivision Plan	Australian Wide CAD Solutions	14/03/2024
Project No. H220005, Rev. F	Flood Report	United Hydraulic Consultants	14/03/2024
Project No. H220005, Dwg No. D1, Rev. G	Stormwater Management Plan – Details, Notes and Legend	United Hydraulic Consultants	14/03/2024
Project No. H220005, Dwg No. D2, Rev. G	Stormwater Management Plan – Site Plan	United Hydraulic Consultants	14/03/2024
Project No. H220005, Dwg No. D3,Rev. G	Driveway/Right of Way Details	United Hydraulic Consultants	14/03/2024
Project No. H220005, Dwg No. D6, Rev. G	Sediment and Erosion Control Plan	United Hydraulic Consultants	14/03/2024
Project No. H220005, Dwg No. D7, Rev. G	Turning Bay Swept Path	United Hydraulic Consultants	14/03/2024
Updated Arborist Report	Abacus Tree Services	23/01/2023
Arborist Letter/ Replanting Schedule	Abacus Tree Services	08/03/2024
Survey Plan	East West Surveyors	05/08/2022
Waste Management Plan	Key Urban Planning	25/02/2023

19. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA/205/2023 for Torrens title subdivision of the site into three lots, driveway construction, stormwater drainage work, tree removal and landscaping at 4 Coventry Crescent, North Epping (Lot 16 DP 28407) is determined by the grant of consent subject to the conditions at Annexure A.

E Washington

Acting Commissioner of the Court

Annexure A

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Decision last updated: 09 April 2024