Land and Environment Court New South Wales Medium Neutral Citation: Mackenzie v Hornsby Shire Council [2019] NSWLEC 1457 Hearing dates: Conciliation conference on 25 September 2019 Date of orders: 27 September 2019 Decision date: 27 September 2019 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River Category: Principal judgment Parties: Dugald Mackenzie (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: G Christmas (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Apex Planning and Environment Law (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/177043 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures, tree removal, excavation and construction of two residential flat buildings comprising 29 units and a basement carpark at 29 and 31A Balmoral Street and 5 Park Lane, Waitara. The appeal is lodged 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 [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 25 September 2019. 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application seeks approval for the construction of two residential flat buildings that are 4 to 5 storeys in height, with two levels of basement car parking for 34 vehicles. The proposed conditions of consent include a deferred commencement condition requiring the transfer of an access handle to the adjoining lot. This allows the adjacent properties to be consolidated and developed in the future without the potential for site isolation caused by the access handle on the site the subject of the present application. 4. 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: * Owners consent has been obtained for the subject site, comprising the three lots legally described as Lot 211 and Lot 212 DP 868605 and Lot 202 DP 1097256, Nos. 29, 31A Balmoral Street and No. 5 Park Lane Waitara. * The development is for the purpose of a "residential flat building" as defined in the Dictionary of Hornsby Local Environmental Plan 2013 ("HLEP 2013"), which is a permissible use in the zone R4 High Density Residential, in which the site is located, pursuant to the provisions of HLEP 2013. * The proposed development does not contravene any development standard in HLEP 2013, Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River or any other applicable environmental planning instrument. * In relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, the land on which the development is proposed to be carried out is not known to be contaminated and is not land that is within an investigation area or land on which development for a purpose referred to in Table 1 to the Contaminated Land Planning Guidelines is being, or is known to have been, carried out. * The development application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * The development application was accompanied by a statement by a qualified designer as referred to in cl 50 of the Environmental Planning and Assessment Regulation 2000. 1. 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)). 2. 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. 3. The Court orders that: 1. The Applicant is granted leave to rely on the following amended plans and documentation: Plan No. Plan Title Drawn by Dated A2.1.1, Rev E Roof/Site plan Mackenzie Architects 04.06.2019 A2.2.1, Rev G Basement 02 Plan Mackenzie Architects 13.03.2019 A2.2.2, Rev G Basement 01 Plan Mackenzie Architects 13.03.2019 A2.2.3, Rev H Ground floor plan Mackenzie Architects 04.06.2019 A2.2.4, Rev F First floor plan Mackenzie Architects 04.06.2019 A2.2.5, Rev E Second floor plan Mackenzie Architects 04.06.2019 A2.2.6, Rev E Third floor plan Mackenzie Architects 04.06.2019 A2.2.7, Rev F Fourth floor plan Mackenzie Architects 04.06.2019 A3.0.1, Rev G Elevations + Sections 01 Mackenzie Architects 04.06.2019 A3.0.2, Rev G Elevations + Sections 02 Mackenzie Architects 04.06.2019 A4.0.1, Rev D Elevations + Sections 03 Mackenzie Architects 04.06.2019 A4.0.2, Rev F Elevations + Sections 04 Mackenzie Architects 04.06.2019 A5.06, Rev D Schedule of External Finishes Mackenzie Architects 04.06.2019 Rev G Hardscape plan Conzept Landscape Australia 07.04.2019 Page 1, Rev F Landscape plan, Ground Floor Conzept Landscape Australia 03.07.2019 Page 2, Rev E Landscape plan 2, Rooftop Conzept Landscape Australia 05.07.219 Page 3, Rev A Bio-Retention planting Conzept Landscape Australia 04.07.2019 Page 4, Rev C Details and Specification Conzept Landscape Australia 02.04.2019 Page 5, Rev B Details 2 Specification Conzept Landscape Australia 02.04.2019 Document Title Prepared by Dated BASIX Certificate No.785978M Greenview Consulting Pty Ltd 09.04/2019 Sediment erosion plan, No.190002-DA-C2.01, Rev 3 Enspire Solutions 24.07.2019 Concept stormwater plan, No.190002-DA-C3.01, Rev 3 Enspire Solutions 24.07.2019 Downstream stormwater plan, No. No.190002-DA-C4.01, Rev 2 Enspire Solutions 24.07.2019 Site catchment plan, No.190002-DA-C7.01, Rev 3 Enspire Solutions 24.07.2019 Adaptive layout, Dwg No.A5.07, Rev B Mackenzie Architects 27.03.2019 Waste management plan Mackenzie Architects 20.12.2016 Accessibility report Sydney Access Consultants 21.12.2016 Survey Plan SDG Land development solutions 29.03.2016 1. The appeal is upheld. 2. Development Application No. DA/1549/2016 for the demolition of existing structures, tree removal, excavation and construction of two four (4) to five (5) storey residential flat buildings comprising 29 units and a basement carpark over two levels for 34 vehicles on the land legally described as Lot 211 and Lot 212 DP 868605 and Lot 202 DP 1097256, Nos. 29, 31A Balmoral Street and No. 5 Park Lane, Waitara is approved, subject to the conditions of consent at annexure "A". …………………………… J Gray Commissioner of the Court Annexure A (389 KB) ********** 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: 27 September 2019