Land and Environment Court New South Wales Medium Neutral Citation: 396 Bells Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1105 Hearing dates: Conciliation Conference 3 March 2023 Date of orders: 10 March 2023 Decision date: 10 March 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Modification Application S960020/22 for the modification of development consent DA0332/16 as amended to date for development at 396 Bells Line of Road, Kurmond being Lot 2 in DP607906 and 2 Inverary Drive, Kurmond being Lot 2 in DP600414 is approved in accordance with Annexure A. (3) As a result of the modification, the consent is subject to the conditions set out in Annexure B. Catchwords: DEVELOPMENT APPEAL – modification application – substantially the same as development approved – subdivision – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Texts Cited: Hawkesbury Development Control Plan 2002 Category: Principal judgment Parties: 396 Bells Pty Ltd (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: S Simington (Solicitor)(Applicant) J Ede (Solicitor)(Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2022/205760 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application S960020/22 to modify Development Consent DA0332/16 (the Consent) for vegetation removal, earthworks, the filling of dams, the construction of roads, the installation of a sewer main and a community title subdivision to create 33 residential lots by increasing the number of residential lots to 35 residential lots (the Proposed Modification) at 396 Bells Line of Road and 2 Inverary Drive, Kurmond legally described as Lot 2 in DP 607906 and as Lot 2 in DP 600414 respectively (the Site). 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 has been held on 3 March 2023. I presided over the conciliation conference. 3. The Applicant has amended the Proposed Modification and now seeks approval to modify the Consent to increase the community title subdivision from 33 lots to 34 lots by changing the configuration of a set of 3 lots into 4 lots without any other changes to the Consent, in particular, retaining a number of relevant trees. 4. 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 Proposed Modification to the Consent 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 the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 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. 6. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to approve a modification application. 7. 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 to be the terms of s 4.55 of the EPA Act to modify a consent. 8. The parties explained how the jurisdictional prerequisites have been satisfied. 9. The parties have considered the matters referred to in s 4.15(1) of the EPA Act as required by s 4.55(4) of the EPA Act. These matters are listed generally in Part 4 of Part A of the Statement of Facts and Contentions filed by the Respondent (SOFAC) on 1 September 2022. 10. I have considered the reasons for which consent was originally granted as set out in the SOFAC at Part 5 of Part A. I note those reasons extracted and summarised from the SOFAC as follows: 1. The resolution issued by the Hawkesbury LPP on 28 March 2018 was as follows: "The Panel unanimously resolved that the determination of the application be deferred to allow the applicant an opportunity to submit amended plans. The amended plans are to be submitted to council by no later than 30 June 2018. REASONS FOR DECISION: The Panel acknowledged that there was merit to the proposal to subdivide the site into a number of smaller lots, for the reasons listed below: 1. The application is subject to a previous approval from a Planning Proposal that permitted subdivision of the subject site. 2. The RMS, RFS, and Office of Water have all given concurrence to the proposed development. 3. The site is suitable for connection to mains sewerage. However, the Panel accepted the argument in the planning report that the right to subdivision was not the only relevant factor to consider. Other factors considered relevant by the Panel included: (i) The pattern of development proposed, apart from the two larger lots protecting the riparian zone (which the Panel supports), does not demonstrate a differentiation in lot size reflective of the topography and prevailing rural residential character of the area. (ii) The proposed road works and site works associated with the application require substantial changes to, and impacts on, the rural-residential character of the site. (iii) The impacts of the above on the visual character of the area. The Panel was of the view that a modified design that provided a greater differentiation in lot size, with smaller lots (not less than the permissible minimum lot size) between Bells Line of Road and the creek corridor, and larger lots (with an average lot size of not less than 4000m2) to the east of the creek corridor, would provide an outcome more in keeping with the existing and desired future character of the area. The Panel agreed to defer the matter to enable the applicant the opportunity to amend the plans in accordance with the above." 1. In response to this resolution the Applicant advised that they did not wish to amend the application and a further report on the matter was considered by the Hawkesbury LPP on 17 May 2018. At this time the Panel resolved to determine the application with a deferred commencement consent requiring a reduction in the number of residential lots from 37 to 33 lots. The deferred commencement condition issued as part of the Consent required the amalgamation of seven rear lots as follows: "That the applicant is to submit for approval of Council's Director City Planning an amended plan of subdivision, amalgamating the following lots into single lots with an area of at least 4,000m2: • Lots 16 and 17 • Lots 18 and 19 • Lots 20, 21 and 22" 1. The SOFAC goes on to confirm that an amended plan satisfying the requirements of the deferred commencement condition of the Consent was supplied and the Consent was made operational on 29 May 2018. 2. The Consent has been subject to four previous s 4.55 modifications relating to sewer arrangements, water quality, water quantity, bushfire and road design matters. 3. Pursuant to s 4.55(2) of the EPA Act, I am satisfied that the Proposed Modification is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was further modified for the following reasons: 1. The addition of one further residential lot does not result in a substantial change to the Consent; 2. No changes to the conditions of consent are sought other than the inclusion of the new Proposed Plan of Subdivision; and 3. There is no adverse environmental impact in particular to the relevant trees. 1. I also note the information in the SOFAC that Council notified the modification application from 1 to 15 June 2022 in accordance with Part A Chapter 3 of the Hawkesbury Development Control Plan 2002. No submissions were received in response to the notification. 2. 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. I adopt the reasons given by the parties as summarised in this judgment. 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. Notations: 1. The Court notes that: 1. the Respondent council approves of the amendment pursuant of the subject modification application to substitute the following further amended plans in place of Drawing No. 14820 Sheet 1 "Plan of Proposed Subdivision" prepared by North Western Surveys and dated 9 June 2020: 1. Drawing No 14820/254 Tree Sheet 1 Plan of Proposed Subdivision – Tree prepared by Norther Western Surveys Rev 01 dated 3 March 2023; 2. Drawing No 14820/255 DA Sheet 1 Plan of Proposed Subdivision – Tree prepared by Norther Western Surveys Rev 00 dated 9 December 2022 1. The further amended plans were filed with the Court on 3 March 2023 Orders: 1. The Court orders: 1. The appeal is upheld. 2. Modification Application S960020/22 for the modification of development consent DA0332/16 as amended to date for development at 396 Bells Line of Road, Kurmond being Lot 2 in DP607906 and 2 Inverary Drive, Kurmond being Lot 2 in DP600414 is approved in accordance with Annexure A. 3. As a result of the modification, the consent is subject to the conditions set out in Annexure B. E Espinosa Commissioner of the Court ********** Annexure A Annexure B 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 March 2023