Land and Environment Court New South Wales Medium Neutral Citation: Landen Dev No.11 Pty Ltd v The Hills Shire Council [2024] NSWLEC 1502 Hearing dates: Conciliation conference 12 August 2024 Date of orders: 20 August 2024 Decision date: 20 August 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs thrown away as a result of reliance on the documents at [9(1)] as agreed or assessed. (2) The appeal is upheld. (3) Development Application 806/2023/ZD for the community title subdivision of the existing lot into five rural residential lots and one association lot, including the demolition of some existing structures, removal of vegetation and filling of the existing dam at 257 McClymonts Road, Kenthurst, legally known as Lot 1 of Deposited Plan 521285, is determined by the grant of consent, subject to conditions contained in Annexure 'A'. Catchwords: APPEAL – development application – community title subdivision – conciliation conference – agreement reached – orders made Legislation Cited: Biodiversity Conservation Act 2016, ss 7.7, 7.13 Conveyancing Act 1919, s 195 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 6.2, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B Biodiversity Conservation Regulation 2017, cl 7.2 Environmental Planning and Assessment Regulation 2021, ss 37, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.65, Ch 9, s 9.3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 The Hills Local Environmental Plan 2019, cll 2.6, 4.1AA, 5.16, 7.2, 7.4 Category: Principal judgment Parties: Landen Dev No.11 Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: J Farrell (Applicant) J Smith (Respondent) Solicitors: Mills Oakley (Applicant) Redenbach Legal (Respondent) File Number(s): 2023/235366 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application lodged on 4 November 2022 for the community title subdivision of land at 257 McClymonts Road, Kenthurst, into five rural residential lots and one community association lot, together with demolition of some existing structures, the removal of some vegetation and the filling of an existing dam. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. Following an adjournment of the hearing, 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 12 August 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was provided on the same date, and follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments made include the reduction of area to all residential lots to meet the extent of the Asset Protection Zone (APZ) clearing area, an increase in the community lot area, the relocation of the proposed fire trail to be wholly within the APZ, a reduction of the building platform for Lot 5, a reduction in the trees proposed for removal, and an additional area to be included within the vegetation management plan. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites that sets out the background to the parties' agreement and the relevant jurisdictional requirements to enable the Court to make the orders sought in the agreement. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned RU2 Rural Landscape, pursuant to The Hills Local Environmental Plan 2019 (HLEP). The subdivision of land is permissible with development consent, pursuant to cl 2.6(1) of the HLEP, and subdivision includes community title subdivision, pursuant to s 6.2 of the EPA Act and s 195 of the Conveyancing Act 1919. * Clause 4.1AA of the HLEP imposes a minimum subdivision lot size for community title schemes, requiring 10ha for each sub-divided lot. However, the proposed development meets the criteria for the exception to this minimum subdivision lot size, in accordance with subcl 4.1AA(3A). In particular, the land to be subdivided is greater than 10.109ha, the southern portion of the site contains land identified as 'biodiversity' but this will be managed through a Vegetation Management Plan dated 31 July 2024 (the VMP) for the community association lot, a total of 5 residential lots are proposed, and the size of all residential lots proposed is between 0.4 and 1ha. Further, based on the VMP, the Biodiversity Development Assessment Report dated 20 June 2024 (BDAR), the Arboricultural Impact Assessment dated 12 July 2024, and the fact that the site is not being used for agricultural production, I am satisfied of the matters in subcl 4.1AA(3B). * Based on the Agreed Statement and my observations of the site and surrounding area, I have taken into account the matters in cl 5.16(4) of the HLEP and consider that the proposed development is compatible with the existing land use of the site and nearby land uses. * The development application includes earthworks for the infill of the dam and for the proposed building platforms and fire trail. Based on the Earthworks Assessment Letter by Orion Consulting dated 26 July 2024, I have considered the matters set out in cl 7.2(3) of the HLEP. * The site is land identified as 'biodiversity' on the Terrestrial Biodiversity Map, such that cl 7.4 of the HLEP applies. Based on the subdivision design, the BDAR and the VMP, I have considered the matters in cl 7.4(3) and I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact, consistent with cl 7.4(4)(a). * The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the BDAR. The BDAR recommends the implementation of mitigation measures through the VMP, and concludes that the VMP will maintain and protect the retained vegetation, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of s 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned and a Detailed Site Investigation prepared by Sydney Environmental Group dated 30 October 2023. The report confirms that the site is able to be remediated in accordance with a Remedial Action Plan dated 30 October 2023 and, therefore, will be made suitable for the proposed development. * Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), the repealed Ch 9 of the SEPP BC continues to apply to the proposed development and the other provisions of Ch 6 do not apply. Chapter 9 concerns the Hawkesbury-Nepean River system, and applies to the proposed development. Based on the BDAR, the VMP, and the Amended Statement of Environmental Effects dated April 2024, I have considered the matters required to be considered by s 9.3. * The development application was notified for the period 14 November to 5 December 2022. One submission was received. I have considered the issues raised in that submission. 1. The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority. The agreed conditions of consent are consistent with the General Terms of Approval issued by the NSW Rural Fire Service on 12 December 2022. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court notes: 1. That the Hills Shire Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application 806/2023/ZD to incorporate the documents listed below: Drawing Issue Plan Title Dated Amended Subdivision Plan SV-02 6 Concept Plan of Subdivision 30 July 2024 Amended Civil Plans 000 L Cover Sheet 30 August 2024 001 C General Notes & Legend 4 June 2024 002 H Demolition & Tree Management Plan 1 August 2024 003 J Site Regrading Plan 1 August 2024 010 K Slope Analysis Plan 1 August 2024 011 E Site Sections Sheet 01 of 04 4 June 2024 012 F Site Sections Sheet 02 of 04 11 July 2024 013 G Site Sections Sheet 03 of 04 11 July 2024 014 C Site Sections Sheet 04 of 04 4 June 2024 100 K Sediment and Erosion Control Plan 1 August 2024 101 B Sediment and Erosion Control Notes and Details 23 May 2023 200 K Engineering Plan 1 August 2024 300 D Fire Trail Longitudinal Sections 4 June 2024 850 G Access Driveway Sight Line Checks 11 July 2024 Amended Reports Amended Arboricultural Report prepared by Hugh the Arborist 12 July 2024 Updated Biodiversity Report prepared by EcoLogical Australia 20 June 2024 Vegetation Management Plan prepared by EcoLogical Australia 31 July 2024 APZ Vegetation Removal Letter prepared by Peterson Bushfire 6 June 2024 Supplementary APZ Letter prepared by Peterson Bushfire 9 July 2024 Bushfire Advice Letter prepared by Peterson Bushfire 31 July 2024 Remediation Action Plan prepared by Sydney Environmental Group 30 October 2023 Clause 7.2 Earthworks Assessment Letter prepared by Orion Consulting 26 July 2024 1. The Court orders that: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs thrown away as a result of reliance on the documents at [9(1)] above, as agreed or assessed. 2. The appeal is upheld. 3. Development Application 806/2023/ZD for the community title subdivision of the existing lot into five rural residential lots and one association lot, including the demolition of some existing structures, removal of vegetation and filling of the existing dam at 257 McClymonts Road, Kenthurst, legally known as Lot 1 of Deposited Plan 521285, is determined by the grant of consent, subject to conditions contained in Annexure 'A'. J Gray 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: 20 August 2024