Anglican Community Services v Hornsby Shire Council [2018] NSWLEC 1626

Land and Environment Court New South Wales

Medium Neutral Citation: Anglican Community Services v Hornsby Shire Council [2018] NSWLEC 1626 Hearing dates: Conciliation conference on 23 October 2018 and 22 November 2018 Date of orders: 03 December 2018 Decision date: 03 December 2018 Jurisdiction: Class 1 Before: Bish C Decision: See [13] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy (Housing for Seniors or People with Disability) 2004 State Environmental Planning Policy (Infrastructure) 2007 Threatened Species Conservation Act 1995 Category: Principal judgment Parties: Anglican Community Services (Applicant) Hornsby Shire Council (Respondent) Representation: Solicitors: F Rourke, Allens (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2018/264204 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal by Hornsby Shire Council of Development Application (DA) 153/2018, which seeks the demolition of existing structures, site remediation, earthworks, vegetation clearing and based on amended plans, the construction of a seniors housing development in five (5) stages. The DA relates to Lots 2 and 3 in DP 225754, and Lot 1 in DP 135398, also known as 589-593 Old Northern Road, Glenhaven. 2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 23 October 2018 (onsite) and 22 November 2018. I have presided over the conciliation conferences. There were three objectors at the onsite conciliation whom raised issues relating to flooding, privacy, traffic, ecology and bushfire. 4. As a result of the conciliation conferences, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 153/2018 with conditions. 5. Under s 34(3) of the LEC Act 1979, 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 s 4.16(1)(a) of the EPA Act 1979 to grant consent to the development application with conditions. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistent with the Threatened Species Conservation Act 1995 (TSC Act 1995), Rural Fires Act 1997 (RF Act 1997), State Environmental Planning Policy (Housing for Seniors or People with Disability) 2004 (SEPP 2004), State Environmental Planning Policy (Infrastructure) 2007 (SEPP 2007) and Hornsby Local Environmental Plan 2013 (HLEP 2013). 7. The amended plans and conditions comply with the requirement of SEPP 2004, specifically the registration and creation of an easement to ensure internal/external access to bus stops and bin bays, in addition to access pathways throughout the site. Compliance with SEPP 2007 requirements that relate to a classified State Road, are addressed by a condition of consent to require a deceleration and turning lanes as shown on amended plans to be approved by Roads and Maritime Services. 8. The parties explained that by way of amended plans, the endangered ecological communities of the Blue Gum High Forest and Sydney Turpentine Ironbark Forest as mapped on the site, pursuant to cl 1, C.1.1 of the HLEP 2013 are protected as required under the TSC Act 1995. No development is proposed within 10m of these mapped ecological communities. In addition, pursuant to the RF Act 1997, the fire trail is located outside the ecological habitat buffer, and an evacuation plan is required by condition of consent. 9. The amended plans result in no adverse amenity impacts either internally or to neighbours based on compliance with HLEP 2013 requirements for water management, setbacks and building separation design. 10. The objectors' issues are therefore adequately addressed, by amended plans and conditions of consent. 11. I am therefore 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 1979. 12. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 13. The Court orders: 1. The Applicant is granted leave to amend development application no. DA/153/2018 by relying on the plans and documents referred to in condition 1 of the conditions in Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment referred to in Order (1) as assessed or agreed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is upheld. 4. Consent is granted to development application DA/153/2018 in accordance with the conditions in Annexure A. ………………………. Sarah Bish Commissioner of the Court Annexure A (559 KB, pdf) Site Plan1 (1.64 MB, pdf)