Land and Environment Court New South Wales Medium Neutral Citation: Mackenzie Architects International Pty Ltd v Hornsby Shire Council [2024] NSWLEC 1253 Hearing dates: Conciliation conference on 6 May 2024 Date of orders: 21 May 2024 Decision date: 21 May 2024 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA/158/2023 for the demolition of the existing dwelling and associated structures and the construction of a multi-dwelling housing development comprising of twenty (20) three and four bedroom townhouses with basement parking and associated landscape works on land at 15 Mildred Avenue, Hornsby is approved, subject to the conditions contained in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.16, 8.7, 38 Land and Environment Court Act 1979 s 34 Environmental Planning and Assessment Regulation 2021 cl 27 Hornsby Local Environmental Plan 2013 cl 2.7, 4.3, 5.21, 6.2, 6.8 State Environmental Planning Policy (Biodiversity and Conservation) s 2.1 State Environmental Planning Policy (Resilience and Hazards) s 4.6 Category: Principal judgment Parties: Mackenzie Architect International Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: S Berveling (Applicant) B Lennox (Solicitor) (Respondent) Solicitors: Yates Law (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 2023/275931 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise from the deemed refusal, by Hornsby Shire Council (the Respondent) of Development Application DA 158/2023. This application seeks consent for the demolition of existing structures and the construction of a multi-dwelling housing development comprising 20 units with basement parking at 15 Mildred Avenue, Hornsby, Lot 2 DP 1261967. 2. The Applicant, Mackenzie Architects International Pty Ltd, has brought these proceedings to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act)). 3. 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 6 May 2024. I presided over the conciliation conference. 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 granting development consent to the development application 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 that decision is one 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. 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 and explained how the jurisdictional prerequisites have been satisfied. From this I note the following. 6. The application has been made with the written consent of the owner of the subject site. 7. The subject site is zoned R3 – Medium Density Residential under the Hornsby Local Environmental Plan 2013 (HLEP), within which multi-dwelling housing is permissible with consent. The proposed development is consistent with the objectives of this zone. Demolition is permissible with consent under HLEP cl 2.7, and that consent is sought with this application. 8. Pursuant to HLEP cl 4.3, a maximum building height for the site is set at 10.5m to which the development complies. 9. No floor space ratio standard applies to the and, and it is not a heritage item, located within the vicinity of a heritage item, or within a heritage conservation area. 10. Pursuant to HLEP cl 5.21, the site is mapped as flood prone land in Council's Flood Control Lots (Urban) Study, July 2021. From the Joint Expert Report of flooding and stormwater engineers, an additional flood report was prepared by Martens & Associates dated 18 April 2024 and an updated stormwater plan prepared by Greenway Consulting dated 11 April 2024, with an amended OSD design. From this the parties submit, and I accept, that the matters listed in cl 5.21 have been adequately considered and the proposed development meets the requirements of this clause. 11. Earthworks are proposed in this development application. The parties submit, and I accept that the matters listed in HLEP cl 6.2 have been considered, and the agreed conditions of consent at Annexure A will ameliorate any adverse impacts that the earthworks may have on the locality and surrounding development. 12. HLEP cl 6.8 applies to this development, and provides that development consent must not be granted unless the consent authority considers that the proposed development exhibits design excellence. In determining this, the consent authority is required to consider the proposed development against each of the matters set out in cl 6.8(3). Noting that I am not required to, and have not, made any merit assessment of the proposed development, the parties submit and I accept that, when considered against the relevant matters in this clause, the proposed development exhibits design excellence. 13. The proposed development includes the removal of two trees: T2 (Acer palmatum) and T3 (Eucalyptus spp). Pursuant to the requirements of State Environmental Planning Policy (Biodiversity and Conservation) 2021 s 2.1, development consent is required for the removal of these trees. This consent is requested in this development application and based on the parties' submission and the Arboricultural Assessment by Adam Desmarchellier rev D dated 20 January 2023, I accept that the removal of these trees is acceptable. 14. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to cl 27 of the Environmental Planning and Assessment Regulation 2021. Compliance with the commitments within this certificate is further required through a condition of consent. 15. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties' submission, I accept that the subject site has been historically used for residential purposes and there are no known actions that may have led to contamination of this land. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the subject site is suitable for its intended purpose. 16. For these reasons, 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. 17. 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. 18. The Court notes: 1. The Hornsby Shire Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending development application No. DA/158/2023 in accordance with the following documents: 1. Architectural plans: Plan No. Plan Title Drawn by Dated A0001 Cover Page Mackenzie Architects International 22/04/2024 (Revision D) A0002 Site Analysis Mackenzie Architects International 15/12/2022 (Revision A) A1001 Basement Plan Mackenzie Architects International 22/04/2024 (Revision H) A1002 Ground Floor Plan Mackenzie Architects International 22/04/2024 (Revision H) A1003 First Floor Plan Mackenzie Architects International 22/04/2024 (Revision H) A1004 Second Floor Plan Mackenzie Architects International 22/04/2024 (Revision H) A1005 Roof Plan & Site Plan Mackenzie Architects International 22/04/2024 (Revision H) A2001 Elevations 1/2 Mackenzie Architects International 22/04/2024 (Revision E) A2002 Elevations 2/2 Mackenzie Architects International 22/04/2024 (Revision E) A2101 Sections 1/2 Mackenzie Architects International 22/04/2024 (Revision G) A2102 Sections 2/2 Mackenzie Architects International 22/04/2024 (Revision G) A3001 GFA Calculations Mackenzie Architects International 22/04/2024 (Revision G) A3002 Landscape Calculations Mackenzie Architects International 22/04/2024 (Revision G) A3003 Deep Soil Calculations Mackenzie Architects International 22/04/2024 (Revision G) A3004 Height Plane Diagram Mackenzie Architects International 22/04/2024 (Revision E) A3005 Pre-Post Adaptable Mackenzie Architects International 15/12/2022 (Revision A) A3006 Sample Board Mackenzie Architects International 22/04/2024 (Revision B) A4001 Solar Access 9am – 12pm Mackenzie Architects International 22/04/2024 (Revision D) A4002 Solar Access 1pm – 3pm Mackenzie Architects International 22/04/2024 (Revision D) A4101 Shadow Diagrams Mackenzie Architects International 22/04/2024 (Revision D) A4102 Shadow Diagrams Mackenzie Architects International 22/04/2024 (Revision D) A4103 Shadow Diagrams Mackenzie Architects International 22/04/2024 (Revision D) 1. Landscape Plans: Plan No. Plan Title Drawn by Dated LPS34 22- 209 Sheet 1 Hardscape Plan Conzept Landscape Architects 22/04/2024 (Issue M) LPS34 22- 209 Sheet 2 Landscape Plan 1 Conzept Landscape Architects 22/04/2024 (Issue M) LPS34 22- 209 Sheet 3 Landscape Plan 2 Conzept Landscape Architects 22/04/2024 (Issue M) LPS34 22- 209 Sheet 4 Details & Specification Conzept Landscape Architects 22/04/2024 (Issue M) 1. Stormwater Management Plans: Plan No. Plan Title Drawn by Dated C01-9 Notes & Legends Greenview Consulting Pty Ltd 23/04/2024 C02-9 Basement 1 Drainage Plan Greenview Consulting Pty Ltd 23/04/2024 C03-9 Ground Floor Drainage Plan Greenview Consulting Pty Ltd 23/04/2024 C04-9 Site Stormwater Details Sheet 1 Greenview Consulting Pty Ltd 23/04/2024 C05-9 Site Stormwater Details Sheet 2 Greenview Consulting Pty Ltd 23/04/2024 C06-9 OSD Catchment Plan Greenview Consulting Pty Ltd 23/04/2024 1. BASIX certificate number 1269493M_04 prepared by Greenview Consulting Pty Ltd dated 1 May 2024; 2. NatHERs Certificate prepared by Greenview Consulting Pty Ltd dated 1 May 2024; 3. Traffic and Parking Assessment Report prepared by Terraffic Pty Ltd dated 9 April 2024; 4. Overland Flow Assessment Report prepared by Martens & Associates Pty Ltd dated 18 April 2024; and 5. 1% AEP Flood Level Maps prepared by Martens & Associates Pty Ltd dated 27 March 2024. 1. The applicant filed the amended development application with the Court on 2 May 2024. 1. The Court orders: 1. The appeal is upheld. 2. Development Application DA/158/2023 for the demolition of the existing dwelling and associated structures and the construction of a multi-dwelling housing development comprising of twenty (20) three and four bedroom townhouses with basement parking and associated landscape works on land at 15 Mildred Avenue, Hornsby is approved, subject to the conditions contained in Annexure "A". E Washington Acting Commissioner of the Court Annexure A ********** 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: 22 May 2024