Land and Environment Court New South Wales Medium Neutral Citation: Vigor Master Pty Ltd v Hornsby Shire Council [2024] NSWLEC 1128 Hearing dates: Conciliation Conference on 28 February 2024 Date of orders: 20 March 2024 Decision date: 20 March 2024 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application No. DA/346/2023 as amended, for the erection of a dwelling house with associated driveway on the land at 19 Lockyer Close, Dural 2158 legally known as Lot 5916 in Deposited Plan 1062410 and a suspended driveway with supporting columns across an unformed portion of New Line Road north of the property (as identified in Annexure B) subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7 Land and Environment Court Act 1979, ss 34, 34AA, 39 Environmental Planning and Assessment Regulation 2021, s 38 Hornsby Local Environmental Plan 2013, cll 2.2, 4.3, 5.10 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 Cases Cited: Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 Texts Cited: Hornsby Development Control Plan 2013 Hornsby Shire Council Community Engagement Plan 2023 NSW Rural Fire Service, Planning for Bush Fire Protection 2019 Category: Principal judgment Parties: Vigor Master Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: T Robertson (Applicant) B Lennox (Solicitor) (Respondent) Solicitors: Storey & Gough (Respondent) File Number(s): 2023/246809 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Hornsby Shire Council of development application DA/346/2023 (the DA) for the erection of a dwelling house with associated driveway on the land at No 19 Lockyer Close, Dural legally known as Lot 5916 in Deposited Plan 1062410 (the site), and for a suspended driveway with supporting columns across the unformed portion of New Line Road (the unformed NLR) located to the north of the property and owned by the Respondent. 2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 February 2024. I presided over the conciliation conference. The site view was vacated as the parties had reached agreement on amendments to the DA. The Respondent confirmed that no objectors wished to address the Court or to attend an on-site view. 3. Prior to the conciliation conference, the parties advised that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement with Annexure A (conditions of consent), was filed with the Court on 27 February 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. (An updated s 34 agreement and amended jurisdictional statement, and the amended plans, were filed with the Court on 6 March 2024). 4. Accordingly, the hearing was adjourned and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions. 5. The parties advise that the DA seeks consent for: 1. Construction of a two-storey dwelling house and associated driveway. 2. Ground floor comprising an open plan kitchen, dining, family and living room; a bedroom with ensuite; a bedroom; a bathroom; a study; and a rumpus room. 3. First floor comprising a bedroom with ensuite and walk in wardrobe; a bedroom with ensuite; a bedroom; a bathroom; a study; and a rumpus room. 4. Construction of an approximately 79 m long driveway to provide access via Lockyer Close with a 20 m section proposed as a bridge to span across the unformed NLR north of the subject property. 5. Removal of 12 of 38 trees identified within the supporting Arborist Report to facilitate the DA. 1. The Respondent filed its Statement of Facts and Contentions with the Court on 22 August 2023. The Applicant filed its Statement of Facts and Contentions in Reply on 12 September 2023. Amended plans and additional supporting information (including a detailed stormwater design, flora and fauna report and alternate bushfire protection proposal) were submitted by the Applicant to the Respondent on 31 January 2024. 2. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in relation to heritage, bushfire, biodiversity and management of stormwater. 3. 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. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows. Environmental Planning and Assessment Act 1979 Owner's consent 1. A copy of the landowner's consent was provided as part of the DA for the land at 19 Lockyer Close, Dural 2158 legally known as Lot 5916 in Deposited Plan 1062410. 2. The Respondent is the owner of the unformed NRL (through which access to the site is proposed) and has requested that the Court exercise its power under s 39(2) of the LEC Act to grant consent of the Respondent. 3. The proposed development involves the construction of a driveway across an unformed roadway owned by the Respondent (Council). Under s 39(2) of the LEC Act, the Court has the power to provide consent to the making of a development application on Council's behalf (Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724). As stated above, the parties have requested that the Court exercise this power, and this has been done in the making of the orders to grant development consent in this matter. Community Participation 1. The DA was notified by the Respondent between 28 April 2023 and 19 May 2023, as required under the provisions of Hornsby Shire Council Community Engagement Plan 2023. Six submissions were received in response to that notification. 2. The amended DA was not re-notified by the Respondent to the objectors. The Respondent advised that it had formed the opinion that the changes made in the amended DA would have no adverse impact on any adjoining or nearby properties. Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act. Hornsby Local Environmental Plan 2013 1. The Hornsby Local Environmental Plan 2013 (LEP) applies to the site and to the proposed development. Under the LEP provisions: 1. The site (including both the privately owned land and the unformed NRL) is zoned R2 Low Density Residential zone pursuant to cl 2.2 of the LEP; and 1. Dwelling houses are a nominate permissible use with consent in the R2 zone; and 2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out; and 1. Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 8.5m, and the parties advise that the proposed development has a building height that is less than 8.5m, complying with the maximum building height requirement; 2. Pursuant to cl 5.10(4) of the LEP, the consent authority must, before granting consent in respect a heritage item, consider the effect of the proposed development on the heritage significance of the item concerned. The proposed development includes a driveway over a Council owned unformed road, containing a convict road which is identified as a heritage item by the LEP; and 1. The parties advise that the amended DA involves changes to the fabric and design of the proposed driveway to minimise the impacts on the convict road. The joint report of the heritage experts indicated that Council's contentions with respect to heritage were resolved by the changes made to the plans in the amended DA. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. State Environmental planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site as it is located within the catchment of the Hawkesbury-Nepean River defined in Ch 6 of the Biodiversity SEPP and is within a non-rural area as defined by Ch 2 of the Biodiversity SEPP; and 1. The parties submitted that a flora and fauna assessment report has been prepared to support the amended DA. The parties' ecologists have confirmed in the joint expert report that a Biodiversity Development Assessment Report is not required to be submitted for the proposal and that the retention of a hollow bearing tree and conditions of consent mean that the proposal is acceptable. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the BASIX certificate (number 1388354S prepared by William Teoh dated 24 April 2023) has been lodged as supporting information with the amended DA. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the proposed development as the site has frontage to a classified road (New Line Road). Section 2.119(2) of the Transport and Infrastructure SEPP contains the requirements which the consent authority must be satisfied about before development consent can be granted; and 1. The parties submitted that the location and design of the proposed new dwelling house will mitigate any potential impact from traffic noise and vehicle emissions. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and 1. The parties advise that the site has been vacant and has no known prior contamination history or use, and is therefore not a potential contamination risk, so that further consideration of contamination is not required under s 4.6 of the Resilience and Hazards SEPP; and 2. the Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development. Hornsby Development Control Plan 2023 1. The parties advise that the provisions of the Hornsby Development Control Plan (the DCP) that are of relevance have been taken into account in preparing the amended DA; and 1. The parties advise that the site is identified as bushfire prone land. The application was referred to NSW Rural Fire Service (RFS). RFS considered the application and provided the recommended conditions in the letter dated 27 November 2023. The parties' bushfire experts have confirmed in the joint expert report that the amended DA satisfies the relevant specifications and requirements of Planning for Bush Fire Protection 2019 and the desired outcome of Part 1C.3.1(a) of the DCP; and 2. The parties advise that the updated stormwater management plan contains an onsite detention tank underneath the driveway and the stormwater will be discharged to an absorption trench located at the rear of the house. Any overflow from the absorption trench will be discharged via a level spreader to avoid any concentration to the flow. The parties' civil engineers have confirmed in the joint expert report that the amended stormwater management plan is acceptable. Conclusion 1. Having considered the advice of the parties provided above at [11]-[22], I am satisfied that: 1. the Applicant's amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act; 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; 3. approval of the proposed development is in the public interest. 1. Further, 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. 2. 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. 3. The Court notes: 1. that Hornsby Shire Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA/346/2023 made on 31 January 2024 to rely on the documents specified below: Approved Plans Plan No. Plan Title Drawn by Dated Council Reference A001, Rev A Site Plan Vigor Master Pty Ltd 31.01.2024 D08824915 A102, Rev A Ground Floor Plan Vigor Master Pty Ltd 31.01.2024 D08824915 A103, Rev A First Floor Plan Vigor Master Pty Ltd 31.01.2024 D08824915 A104, Rev A Roof Plan Vigor Master Pty Ltd 31.01.2024 D08824915 A201, Rev A Front and Rear Elevations Vigor Master Pty Ltd 31.01.2024 D08824915 A202, Rev A Northwest Elevation Vigor Master Pty Ltd 31.01.2024 D08824915 A203, Rev A Southeast Elevation Vigor Master Pty Ltd 31.01.2024 D08824915 A301, Rev A Section Vigor Master Pty Ltd 31.01.2024 D08824915 A302, Rev A Driveway Detail Plan Vigor Master Pty Ltd 31.01.2024 D08824915 A000 Tree Retention/Removal Plan Vigor Master Pty Ltd 12.04.2023 D08824915 Supporting Documentation Document Title Prepared by Dated Council Reference BASIX Certificate 1388354S William Teoh 24.04.2023 D08639322 Bushfire Assessment Report Bush Fire Planning Services 26.05.2022 D08639284 Arboricultural Impact Assessment Urban Arbor 11.04.2023 D08639330 Statement of Heritage Impact Three+One Heritage August 2022 D08639273 Archaeology Impact Statement Casey & Lowe 27.07.2022 D08639270 Review of Heritage Issues Cultural Resources Management - D08765016 Flora and Fauna Impact Assessment Report Land Eco Consulting 08.02.2024 D08822549 Stormwater Plan 22025-C06 Revision 3 A & G Consulting Engineers Pty Ltd 13.02.2024 D08824893 Stormwater Details 22025-C07 Revision 3 A & G Consulting Engineers Pty Ltd 13.02.2024 D08824893 Waste Management Plan Vigor Master Pty Ltd - D08639039 Detail Survey 3801 Survcorp 03.03.2023 D08639047 1. The amended DA was filed with the Court on 6 March 2024. 2. The Applicant has agreed to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the amount of $8,000.00. 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application No. DA/346/2023 as amended, for the erection of a dwelling house with associated driveway on the land at 19 Lockyer Close, Dural 2158 legally known as Lot 5916 in Deposited Plan 1062410 and a suspended driveway with supporting columns across an unformed portion of New Line Road north of the property (as identified in Annexure B) subject to the conditions of consent in Annexure A. ………………………. G Kullen Acting Commissioner of the Court Annexure A (274136, pdf) Annexure B (3712152, 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: 20 March 2024