Land and Environment Court New South Wales Medium Neutral Citation: KMA Developments No. 5 Pty Ltd v The Hills Shire Council [2024] NSWLEC 1212 Hearing dates: Conciliation conference held on 16 April 2024 Date of orders: 23 April 2024 Decision date: 23 April 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed. (2) The appeal is upheld. (3) Development Application DA293/2023/ZD seeking Community title subdivision into 12 lots and one Community Property lot, on Lot 6003 Deposited Plan (DP) 1215176 and Lot 3 DP 1159841, also known as 17-25 Samantha Riley Drive, North Kellyville is determined by the grant of consent, and subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – Community title subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.47, 8.15, 8.7 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B Water Management Act 2000, s 91 Environmental Planning and Assessment Regulation 2021, ss 23, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, s 9.2 State Environmental Planning Policy (Precincts - Central River City) 2021, Appendix 5, ss 2.3, 6.2, 6.3, 6.5 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River, s 2 Texts Cited: The Hills Shire Council Community Participation Plan North Kellyville Precinct Development Control Plan 2018 Category: Principal judgment Parties: KMA Developments No. 5 Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: G Farland (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: Allens (Applicant) Hall & Wilcox (Respondent) File Number(s): 2023/86985 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA293/2023/ZD by The Hills Shire Council (the Council), seeking, as amended, Community title subdivision into 12 lots and one Community Property lot, with associated civil works on Lot 6003 Deposited Plan (DP) 1215176 and Lot 3 DP 1159841, also known as 17-25 Samantha Riley Drive, North Kellyville (hereafter the site). Background 1. Development Application DA293/2023/ZD (the DA) was lodged with Council via the NSW Planning Portal on 15 August 2022. Following a period of notification, four submissions in objection were received by Council. As an integrated development, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act), the original and amended DA were referred to the NSW Rural Fire Service (RFS) and the Department of Planning and Environment - Water (DPE - Water). 2. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act. 3. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view, originally as part of a hearing, that was adjourned (and then vacated) to allow a s 34 conciliation conference, at the request of the parties and as agreed by the Court. One objector was present at the start of the onsite view, who relied on their written submission provided during the notification period. 4. The Council agreed for the applicant to amend the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 5. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the issues raised by the resident objectors have been considered in the merit assessment. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under and s 4.16 of the EPA Act and being satisfied, in consideration of ss 4.14 and 4.15, to grant consent to Development Application DA293/2023/ZD, subject to conditions in Annexure A. Jurisdictional prerequisites 1. The proposed development adjoins Smalls Creek, a tributary of the Cattai Creek, and proposes works within 40 m of the riverbank, identified as being on waterfront land, pursuant to the Water Management Act 2000 (WM Act). Pursuant to s 91 of the WM Act, a controlled activity approval is required for these subdivision works. The General Terms of Approval (GTA's) issued by the DPE-Water are adopted in the agreed conditions of consent, addressing the relevant requirements of the WM Act. 2. The northern portion for the site is mapped as having Biodiversity Values, pursuant to the Biodiversity Conservation Act 2016 (BC Act). The DA does not propose any works in these mapped areas and addresses any potential for minor impact through a Vegetation Management Plan, prepared by Total Earth, dated 27 November 2023. The requirements of the BC Act are sufficiently addressed by the amended DA, and supported by the agreed conditions of consent. 3. The site is mapped by Council as bushfire prone land, engaging consideration of s 4.14 of the EPA Act. The DA relies on an Amended Bushfire Assessment Report and a Bushfire Hazard Management Plan, prepared by Waratah Bushfire, dated 27 November 2023. The DA was referred to the RFS, pursuant to s 100B of the Rural Fires Act 1997. The RFS issued GTA's for the original and an amended version of the DA, which the parties have confirmed relates to the (amended) DA, the subject of the agreement between the parties. The GTA's of RFS have been adopted in the agreed conditions of consent, and the Court is satisfied that the consent is consistent with these GTA's, pursuant to s 4.47(5) of the EPA Act. 4. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the DA. The following jurisdictional requirements have been specifically considered: 1. Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (SREP): 1. The site is located within the Baulkham Hills local government area (LGA), engaging consideration of the SREP, pursuant to s 2(1). The proposed works associated with the subdivision seek to protect the water quality of the catchment by an appropriate design for stormwater management as described in the DA and agreed conditions of consent. 1. State Environmental Planning Policy (Precincts - Central River City) 2021 (SEPP Precincts): 1. The site forms part of the Sydney Region Growth Centres, within the North Kellyville Precinct. Pursuant to Appendix 5, s2.3 of the SEPP Precincts, the proposed subdivision is situated over land zoned E4 Environmental Living. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant zone objectives. 2. As described in a Bio-certification letter prepared by Total Earth, dated 28 November 2023, the site has parts of land that are 'certified' to protect native vegetation, pursuant to SEPP Precincts. The DA proposes to designate this land as part of a Community Property lot. The remainder of the site is 'non-certified land', specifically where the Community title subdivision is proposed, with associated works. There is no clearing proposed within the certified land. 3. The amended DA is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of Appendix 5 of the SEPP Precincts. Pursuant to s 6.5, the DA seeks to subdivide the land into Community title lots of suitable size to meet the relevant objectives. 4. The site is mapped as being within a 'native vegetation retention area' on the Native Vegetation Protection Map and within a 'riparian protection area' on the Riparian Protection Area Map, pursuant to ss 6.2 and 6.3 of the SEPP Precincts. The DA relies on an Ecological Impact Assessment, prepared by Thrive Ecology, dated 28 November 2023. The proposed development does not seek to clear or cause adverse impact to areas of native vegetation. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The site has historically been used as a residence and Council is satisfied there are no records of contamination relating to the site. The contamination status of the site is appropriately considered, and the relevant requirements of s 4.6 of the SEPP Resilience are addressed. 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity): 1. The site is located within the Hawkesbury-Nepean catchment and within the Baulkham Hills LGA, engaging the SEPP Biodiversity, pursuant to Ch 9. The requirements of s 9.2 are sufficiently addressed by the amended DA and agreed conditions of consent. 1. North Kellyville Precinct Development Control Plan 2018 (NKPDCP): 1. The relevant requirements of the NKPDCP are generally complied with based on the amended plans, supporting documents to the amended DA and the agreed conditions of consent. 2. The original application was publicly notified in accordance with the NKPDCP and The Hills Shire Council Community Participation Plan. The four submissions received during the notification period have been considered in Council's merit assessment of the DA. 3. The Council agrees that the proposed development is assessed as not causing unsatisfactory amenity impacts to adjoining properties or impact the environment. To protect receiving water environments, the amended DA relies on modelling of stormwater discharge from the site, as described in the Flood Study report, prepared by Richmond + Ross, dated 24 November 2023, and appropriate infrastructure described in the stormwater management design plans. 1. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the site. All proposed works are explained to the Court as being within the site. Grant of consent 1. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment and expert report, the parties confirm to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to the orders sought and that Development Application DA293/2023/ZD, as amended, should be determined by the grant of consent. 3. As the parties' agreement 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. The Court notes that: 1. The Court granted leave for the application to amend the Development Application DA293/2023/ZD by way of Notice of Motion with supporting affidavit on 8 December 2023. 2. The Hills Shire Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, for the applicant to amend Development Application DA293/2023/ZD, as follows: Document Date Plan of Proposed Community Title Subdivision, Drawing No. 6023-SUB1_J Rev J, prepared by Mepstead & Associates. 16 April 2024 Schedule of Amendments to Civil Drawings. 9 April 2024 Private Road Longitudinal Section, Drawing No. 6023-DA-106-01_G Sheet 12 Rev G, prepared by Mepstead & Associates. 15 March 2024 DRAINS Sub-catchment Plan, Drawing No. 6023-DA-116-01 Sheet 1 Rev A, prepared by Mepstead & Associates. 20 March 2024 Combined OSD & Bioretention Basin Details, Drawing No. 6023-DA-111-01_G Sheet 27 Rev G, prepared by Mepstead & Associates. 15 March 2024 Stormwater Catchment Plan, Pit Schedule and Detention Storage Sizing, Drawing No. 6023-DA-109-01_G Sheet 22 Rev G, prepared by Mepstead & Associates. 15 March 2024 Amended 'Flood Study For proposed Development at 17-25 Samantha Riley Drive, North Kellyville NSW 2155', prepared by Richmond + Ross. 18 March 2024 Amended DRAINS Model. 18 March 2024 Amended TUFLOW Model. 27 February 2024 Letter report prepared by Thrive Ecology. 15 April 2024 1. The applicant has filed the amendments to the DA on 16 April 2024. 1. The Court orders that: 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed. 2. The appeal is upheld. 3. Development Application DA293/2023/ZD seeking Community title subdivision into 12 lots and one Community Property lot, on Lot 6003 Deposited Plan (DP) 1215176 and Lot 3 DP 1159841, also known as 17-25 Samantha Riley Drive, North Kellyville is determined by the grant of consent, and subject to the conditions set out in Annexure A. ………………………… S Bish Commissioner of the Court Annexure A ********** Amendments 24 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), orders made on 23/4/2024 are amended to include a cost order described in order 2(c) of the s 34 agreement pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 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: 24 April 2024