Land and Environment Court New South Wales Medium Neutral Citation: Neumann v Hornsby Shire Council [2020] NSWLEC 1490 Hearing dates: Conciliation conference on 8 October 2020 Date of orders: 15 October 2020 Decision date: 15 October 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The applicant is granted leave to amend the development application and rely on the amended plans and documents referred to in Condition 1 of Annexure "A". (2) The Appeal is upheld. (3) Development Application DA/847/2019 for the Torrens title subdivision of one lot into two lots, demolition of the deck to the existing dwelling house and construction of a new dwelling house, and ancillary flood mitigation, drainage and roads at 101 – 103 Wongala Crescent, Pennant Hills, NSW (Lot 15 in DP10463) is approved subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: Hornsby Development Control Plan 2017 Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Megan Neumann (First Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/147539 Publication restriction: No Judgment 1. COMMISSIONER: Megan Neumann (the Applicant) has appealed the refusal by the Hornsby Local Planning Panel under delegation from Hornsby Shire Council (the Respondent) of her development application DA/847/2019 seeking approval for Torrens title subdivision of one lot into two lots, the demolition of a deck to an existing dwelling and construction of a new dwelling house, ancillary drainage and driveway works (the Proposed Development) at 101-103 Wongala Crescent, Pennant Hills (the Subject Site). 2. The Subject Site is zoned R2 Low Density Residential under the provisions of Hornsby Local Environmental Plan 2013 (HLEP), and the Proposed Development is permissible within this zone. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 7 October 2020, and I presided over that conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's 'COVID-19 Pandemic Arrangements Policy' and a site view was not undertaken as part of the proceedings. 6. 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 consent to the Applicant's development application, subject to conditions. 7. 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. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows: 1. pursuant to the provisions of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), the requirements of cl 7(1) of SEPP 55 have been considered and they are satisfied the Subject Site is not contaminated; 2. pursuant to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), an updated BASIX Certificate No.976468S_03 has been prepared in respect of the Applicant's amended plans, and a condition of consent has been included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX certificate; 3. pursuant to the provisions of HLEP, the Proposed Development, as amended: 1. is located within the Beecroft North Precinct Heritage Conservation Area, and the Parties are satisfied that the objectives and requirements of cl 5.10 (including cl 5.10(4)) concerning heritage conservation, are met; 2. satisfies the matters about which the Court, standing in the shoes of the consent authority, is required to be satisfied pursuant to the provisions of cl 6.4(4) concerning terrestrial biodiversity, noting that a portion of the rear of the Subject Site is mapped on the terrestrial biodiversity map within HLEP and, as a consequence, the provisions of cl 6.4 apply; 3. the Parties agree that the matters requiring consideration under the provisions of cl 6.2(3) concerning earthworks have been so considered in the preparation and assessment of the application; 4. satisfies the matters about which must be satisfied pursuant to the provisions of cl 6.3(3) concerning flood planning; 1. the Proposed Development is integrated development pursuant to the provisions of Div 4.8 of the EP&A Act and s 100B of the Rural Fires Act 1997, and the Parties confirmed that on 6 December 2019, NSW Rural Fire Service provided General Terms of Approval in relation to the Proposed Development and these have been included within proposed conditions of consent; 2. the Subject Site is adjacent to the Northern Railway line on the southern side of Wongala Crescent. Pursuant to cl 85 of State Environmental Planning Policy (Infrastructure) 2007, the Proposed Development was referred to Sydney Trains, and on 29 June 2020 the Respondent received a referral response from Sydney Trains which was taken into account in assessing the application. Conditions of consent provided by Sydney Trains have been included in the proposed conditions of consent; 3. the Subject Site contains a vegetation community known as Blue Gum High Forest which is listed as critically endangered under the Biodiversity Conservation Act 2016. The Parties agree that the development is not likely to significantly impact on any threatened species and therefore a biodiversity development assessment report pursuant to s 7.7(2) of the Biodiversity Conservation Act 2016 is not required; 4. the Applicant's development application was notified in accordance with the relevant requirements of the EP&A Act, the EP&A Regulation and Hornsby Development Control Plan 2017, and 13 submissions were received in response to that notification. The Respondent has advised that it is satisfied that all matters raised within those submissions, and further submissions provided in relation to this appeal, have been addressed through the Applicant's amended plans, accompanying plans and through proposed conditions of consent, as required. 1. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 2. I am further 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. 3. 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. 4. 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. 5. The Court orders that: 1. The applicant is granted leave to amend the development application and rely on the amended plans and documents referred to in Condition 1 of Annexure "A". 2. The Appeal is upheld. 3. Development Application DA/847/2019 for the Torrens title subdivision of one lot into two lots, demolition of the deck to the existing dwelling house and construction of a new dwelling house, and ancillary flood mitigation, drainage and roads at 101 – 103 Wongala Crescent, Pennant Hills, NSW (Lot 15 in DP10463) is approved subject to the conditions set out in Annexure "A". …………………………….. M Chilcott Commissioner of the Court Annexure A (342595, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2020