Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Hawkesbury City Council [2022] NSWLEC 1536 Hearing dates: Conciliation conference on 16 May 2022; 8 September 2022 Date of orders: 10 October 2022 Decision date: 10 October 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The appeal is upheld. (3) Development consent is granted to DA0322/21 for the demolition of existing structures, construction of public roads, construction of two temporary stormwater detention basins and subdivision of land into 168 single dwelling lots, one dual occupancy lot and two residual lots in two stages on land legally described as Lot 8 in DP 578758 (283 Commercial Road, Vineyard), Lot 1 in DP 253872 (65 Harkness Road, Oakville), Lot 2 in DP 253872 (57 Harkness Road, Oakville), Lot 3 in DP 253872 (49 Harkness Road, Oakville), Lot 4 in DP 253872 (41 Harkness Road, Oakville), Lot 5 in DP 253872 (21 Harkness Road, Oakville), Lot 6 in DP 253872 (305 Commercial Road, Vineyard) and Lot 2 in DP 1180840 (44 Menin Road, Vineyard) subject to the conditions in Annexure B. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.15(3) Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 Pt 9.2 s 9.3 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6 State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 13 cll 2.6, 4.1I, 6.1, 6.8, 6.9 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/17005 Judgment 1. The applicant has appealed against the Hawkesbury City Council's (Council) deemed refusal of its development application no. DA0322/21 (DA) for the subdivision of land at Lot 8 in DP578758 and Lots 1, 2, 3, 4 and 5 in DP253872 and known as 283 Commercial Road, Vineyard NSW 2765 and 21-65 Harkness Road, Oakville NSW 2765. 2. 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 8 September 2022, and at which I presided. 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. This decision involved the Court upholding the appeal and approving the development consent in an amended form subject to conditions. 4. The amended DA now seeks development consent for the demolition of existing structures, earthworks, construction of public roads, construction of two temporary stormwater detention basins and subdivision of land into 169 residential lots (168 single dwelling lots and one dual occupancy lot) and two residual lots in two stages on land legally described as Lot 8 in DP578758 (283 Commercial Road, Vineyard), Lot 1 in DP253872 (65 Harkness Road, Oakville), Lot 2 in DP253872 (57 Harkness Road, Oakville), Lot 3 in DP253872 (49 Harkness Road, Oakville), Lot 4 in DP253872 (41 Harkness Road, Oakville), Lot 5 in DP in DP253872 (21 Harkness Road, Oakville), Lot 6 DP 253872 (305 Commercial Road, Vineyard) and Lot 2 DP 1180840 (44 Menin Road, Vineyard) (the site). 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the Court could have made that decision in the proper exercise of its functions. Before the function under s 4.16(1) of the Environmental Planning and Assessment Act 1979 can be exercised there are jurisdictional prerequisites that must be satisfied. 6. The parties identified the jurisdictional prerequisites of relevance in a jurisdictional note filed with the s34 agreement. Based on those submissions and the documentation before the Court, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions for the following reasons. Jurisdictional considerations State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) 1. The site is zoned R2 Low Density Residential under Appendix 13 of the Growth Centres SEPP. Subdivision of land is permitted with consent under cl 2.6 of Appendix 13. 2. The relevant applicable clauses under Appendix 13 of the Growth Centres SEPP are considered as follows: Clause Requirement Proposal Residential Density Clause 4.1I Development consent must not be granted if the subdivision would result in the dwelling density on any resultant lot being greater than the maximum dwelling density specified for the land by that dwelling density range. The amended DA provides for a total of 169 residential lots, which complies with the dwelling density range. The site is identified as O2. The dwelling density range (per hectare) is 15 (minimum) to 19 maximum). The site is required to provide for a minimum of 167 dwellings and a maximum of 199 dwellings. Public Utility Infrastructure Clause 6.1 Development consent must not be granted for development on land to which this Precinct Plan applies unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. The Applicant's Statement of Environmental Effects dated 8 July 2022 sets out at section 2.3 'Availability of Essential Services' how this clause is addressed. Acid Sulfate Soils The site is mapped as Class 5 on the Acid Sulfate Soils Map. Clause 6.8 Pursuant to cl 6.8(2), development consent is required for the carrying out of works on land that is mapped as Class 5 if: No further investigation is required under clause 6.8 as there are no proposed works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. "Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land." Earthworks Before granting development consent for earthworks, the consent authority must consider the following matters— (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, Clause 6.9 sets out matters of consideration only, and does not contain matters which the Court is required to be satisfied of. Clause 6.9 (d) the effect of the development on the existing and likely amenity of adjoining properties, Notwithstanding this, it is noted that the amended DA is accompanied by Sediment & Erosion Control Concept Plans and Contamination Assessment Reports. (e) the source of any fill material and the destination of any excavated material, The proposed earthworks do not impact on the amenity of the site. (f) the likelihood of disturbing Aboriginal objects, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP) 1. Chapter 9 Hawkesbury-Nepean River of the Biodiversity & Conservation SEPP applies to the proposed development. 2. Section 9.3 of the Biodiversity & Conservation SEPP requires a consent authority to consider the matters referred to in Pt 9.2, which are not matters the Court is required to be satisfied of. 3. The matters for consideration under Pt 9.2 have been addressed in the following material which accompany the amended DA: 1. Statement of Environmental Effects prepared by Universal Property Group Pty Ltd dated 8 July 2022; 2. Amended Contamination Assessment Report prepared by Geotesta Pty Ltd dated 15 August 2022; 3. Combined Stage 1 Preliminary & Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 23 September 2021; 4. Civil engineering plans prepared by Orion Consulting dated 8 July 2022. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP) 1. Chapter 4 Remediation of land of the Resilience & Hazards SEPP applies to the proposed development. 2. Section 4.6 of the Resilience & Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application. Section 4.6(1) requires that: A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. The amended DA is accompanied by an Addendum Contamination Assessment Report prepared by Geotesta Pty Ltd dated 15 August 2022 and a Combined Stage 1 Preliminary & Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 23 September 2021. 2. Based on these reports, the site has a low risk of soil and groundwater contamination and is suitable for the proposed residential development. State Environmental Planning Policy (Transport and Infrastructure) 2021 (ISEPP) 1. Chapter 2 Infrastructure of the ISEPP applies to the proposed development. 2. The matters for consideration under Ch 2 of the ISEPP have been addressed in the following material which accompany the amended DA: 1. Road Safety Audit prepared by AMWC RSA dated 20 May 2022; 2. Traffic response prepared by Varga Traffic Planning Pty Ltd dated 15 July 2022; 3. Truck Swept Turning Paths prepared by Varga Traffic Planning Pty Ltd dated 8 September 2022; and 4. Civil engineering plans prepared by Orion Consulting dated 8 July 2022. Notification of DA and public interest considerations 1. The DA was notified and advertised from 25 November 2021 to 23 December 2021, however, I am informed that no submissions were received. 2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I now make the following orders in accordance with the parties' decision. 3. The Court notes the Council, as the relevant consent authority, has consented pursuant to cl 55 of the Environment Planning and Assessment Regulation 2000 to the applicant amending Development Application No. DA0322/21 in accordance with the amended plans and documents lodged on the NSW planning portal on 20 September 2022 and filed with the Court on 21 September 2022 as described in Annexure A. 4. The Court orders: 1. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to DA0322/21 for the demolition of existing structures, construction of public roads, construction of two temporary stormwater detention basins and subdivision of land into 168 single dwelling lots, one dual occupancy lot and two residual lots in two stages on land legally described as Lot 8 in DP 578758 (283 Commercial Road, Vineyard), Lot 1 in DP 253872 (65 Harkness Road, Oakville), Lot 2 in DP 253872 (57 Harkness Road, Oakville), Lot 3 in DP 253872 (49 Harkness Road, Oakville), Lot 4 in DP 253872 (41 Harkness Road, Oakville), Lot 5 in DP 253872 (21 Harkness Road, Oakville), Lot 6 in DP 253872 (305 Commercial Road, Vineyard) and Lot 2 in DP 1180840 (44 Menin Road, Vineyard) subject to the conditions in Annexure B. ……………………. S Dixon Senior Commissioner of the Court Annexure A (149315, pdf) Annexure B (1132241, 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: 10 October 2022