Land and Environment Court New South Wales Medium Neutral Citation: Graham Trilby Pty Ltd v The Hills Shire Council [2021] NSWLEC 1325 Hearing dates: Conciliation conference on 21 May 2021 Date of orders: 08 June 2021 Decision date: 08 June 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The applicant is granted leave to amend the development application to rely on the documents described in the Schedule attached as Attachment 1. (2) The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the development application pursuant to order (1) above. (3) The appeal is upheld. (4) Development Application No 1335/2020/ZB as amended, for subdivision of land described as Lot 161 in DP 1007387 and Lot 105 in DP 1072158 at 60-98 Cattai Creek Drive and 14 Georgia Terrace, Kellyville, is approved, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential subdivision – conciliation conference – agreement between the parties Legislation Cited: Biodiversity Conservation Act 2016 ss 7.7, 7.13 Environmental Planning and Assessment Act 1979 ss 4.16, 4.47, 8.7 Land and Environment Court Act 1979 s 34 Rural Fires Act 1997 s 100B State Environmental Planning Policy No 55—Remediation of Land cl 7 The Hills Local Environmental Plan 2019 cll 2.6, 4.1, 6.1, 6.3, 7.2 Water Management Act 2000 s 91 Category: Principal judgment Parties: Graham Trilby Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: W Doueihi (Solicitor) (Applicant) L Whiting (Solicitor) (Respondent) Solicitors: Clayton Utz (Applicant) Hall & Wilcox Lawyers (Respondent) File Number(s): 2020/217096 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 1335/2020/ZB for subdivision of land creating 40 residential lots and 1 residue lot, including new roads, services, fire trails and publicly accessible shared paths (the proposal) at 60-98 Cattai Creek Drive and 14 Georgia Terrace, Kellyville (Lot 161 in DP 1007387 and Lot 105 in DP 1072158) (the site) by the Hills Shire Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 May 2021. I presided over the conciliation conference. 3. 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. 4. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to The Hills Local Environmental Plan 2019 (LEP 2019), the Rural Fires Act 1997, the Water Management Act 2000 and the Biodiversity Conservation Act 2016. Planning framework 1. The site is zoned R2 Low Density Residential and RE1 Public Recreation pursuant to LEP 2019 (Land Zoning Map – Sheet LZN_015 of LEP 2019). The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain the existing low density residential character of the area. 1. The objectives of the RE1 zone are: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. 1. Land to which LEP 2019 applies, which includes the site, may be subdivided, but only with development consent, pursuant to cl 2.6(1) of LEP 2019. 2. The minimum lot size is 450sqm (cl 4.1 and Lot Size Map – Sheet LSZ_015 of LEP 2019) and the residential lots comply with the minimum lot size development standard. Consideration 1. The application was notified from 5 May 2020 until 6 June 2020 in accordance with the requirements for notification of development applications. The written submissions of the objectors were filed with the Court on 18 February 2021. The Council submitted that the amended proposal is not required to be re-notified because the amendments include the deletion of 13 lots. The Council submitted that the amendments made to the proposal address the objectors' concerns. 2. The proposal is permissible with development consent within the R2 zone and works for roads and recreation areas are permissible in the RE1 zone. All RE1 zoned land and some R2 zoned land is included within the residue Lot 41. The parties entered into a Deed of Land Transfer for the purchase of the residue Lot 41 by the Council. I accept the Council's submission that no development is proposed on the portion of the site zoned RE1 which would be inconsistent with the public purpose for which it is zoned. 3. The proposal is integrated development pursuant to s 4.47 of the EPA Act, as the proposal requires a Bushfire Safety Authority issued by the Rural Fire Service pursuant to s 100B of the Rural Fires Act 1997 and a Controlled Activity Approval issued by the Natural Resources Access Regulator, pursuant to s 91(2) of the Water Management Act 2000. The general terms of approval from the Rural Fire Service, issued on 14 April 2021, are incorporated in the conditions of consent at Annexure A. The general terms of approval from the Natural Resources Access Regulator, issued on 13 May 2020, are incorporated in the conditions of consent at Annexure A. The consent granted by the orders of the Court, exercising the functions of the Council as consent authority, is consistent with the general terms of approval granted by the approval bodies in relation to the application, pursuant to s 4.47(3) of the EPA Act. 4. The application is accompanied by a Biodiversity Development Assessment Report (BDAR), dated 19 April 2021, pursuant to s 7.7(2) of the Biodiversity Conservation Act 2016. The application proposes the retirement of biodiversity credits to offset residual impact on biodiversity values. The conditions of consent at Annexure A require the retirement of biodiversity credits in the quantities and classes required by the BDAR, pursuant to s 7.13(3) of the Biodiversity Conservation Act 2016. 5. The application is accompanied by a Preliminary Contamination Site Investigation dated 17 March 2020, a Targeted Contamination Investigation dated 14 December 2020 and a Remedial Action Plan dated 14 January 2021, pursuant to cl 7 of State Environmental Planning Policy No 55—Remediation of Land. I accept the submission of the Council that, on the basis of the reports provided, the site will be suitable for the proposed residential purpose after remediation of the land. 6. The site is within an urban release area pursuant to cl 6.1 of LEP 2019. I accept the Council's submission that the development site is capable of being serviced with available public utility infrastructure, pursuant to cl 6.3 of LEP 2019. 7. Development consent is required for the proposed earthworks, pursuant to cl 7.2(2) of LEP 2019. The consent authority, or the Court exercising the functions of the consent authority, must consider the matters under cl 7.2(3) of LEP 2019 before granting consent to the application. I accept the Council's submission that those matters have been considered. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the development application to rely on the documents described in the Schedule attached as Attachment 1. 2. The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the development application pursuant to order (1) above. 3. The appeal is upheld. 4. Development Application No 1335/2020/ZB as amended, for subdivision of land described as Lot 161 in DP 1007387 and Lot 105 in DP 1072158 at 60-98 Cattai Creek Drive and 14 Georgia Terrace, Kellyville, is approved, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Attachment 1 (161566, pdf) Annexure A (1362526, pdf) Plan of Subdivision (563692, 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: 08 June 2021