DCRM Management Services Pty Ltd v Hornsby Shire Council [2020] NSWLEC 1141

Land and Environment Court New South Wales

Medium Neutral Citation: DCRM Management Services Pty Ltd v Hornsby Shire Council [2020] NSWLEC 1141 Hearing dates: Conciliation conference on 11 March 2020 Date of orders: 25 March 2020 Decision date: 25 March 2020 Jurisdiction: Class 1 Before: Smithson C Decision: See orders at [22] below Catchwords: DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 2014 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Hornsby Development Control Plan 2013 Category: Principal judgment Parties: DCRM Management Services Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: J Hones (Solicitor) (Applicant) A Pickup (Solicitor) (Respondent)

Solicitors: Hones Lawyers Pty Ltd (Applicant) Local Government Legal (Respondent) File Number(s): 2019/237121 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by DCRM Management Services Pty Ltd (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal of development application DA/633/2016 (the application) by Hornsby Shire Council (the Council). 2. The application sought consent to the demolition of existing structures, remediation of contaminated land, subdivision (in 3 stages) of 6 lots into 13 lots, including 2 Torrens title lots and 11 community title lots, at 2A and 6 Judith Avenue and 589, 591, 591A and 593 Pacific Highway, Mount Colah (the site). 3. The site is located on the north-western corner of Pacific Highway and Judith Avenue. It comprises 6 existing lots; 4 fronting Pacific Highway and 2 fronting Judith Avenue. It is irregular in shape with an area of 3.05ha and contains 2 cottages, one of which is currently derelict. 4. The north-eastern portion of the site is zoned B1 Neighbourhood Centre under the provisions of the Hornsby Local Environmental Plan 2014 (the LEP). The eastern portion of the site is otherwise zoned R2 Low Density Residential whilst the balance western portion, heavily vegetated and containing a tributary of Berowra Creek, is zoned E3 Environmental Management. 5. Investigations indicate that some 5900m3 of contaminated fill were deposited on the site during the late 1960's. Removal and remediation of this fill is required to be undertaken in accordance with the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). 6. The development is 'integrated development' as defined at s 4.47 of the EPA Act given the access to Pacific Highway and the need for a bushfire asset protection zone to be provided. The application was referred to Roads and Maritime Services (RMS) and NSW Rural Fire Services (RFS) accordingly. General Terms of Agreement (GTAs) were received from both RMS and RFS for the development. 7. The application was advertised and 7 objections were received. The main concerns raised related to: the high density proposed; traffic, parking and stormwater management; the remediation of the land; and the invasion of weeds in the E3 zone. 8. Following lodgement of the appeal, the Council filed a Statement of Facts and Contentions (SFC) raising a series of concerns with the development. In response, the applicant provided additional documentation and the applicant was granted leave to rely upon this documentation by the Court in September 2019. The documentation included an amended Remedial Action Plan (RAP) and a supplementary Detailed Site Investigation (DSI) to deal with the contamination and remediation, and an additional Aboricultural Report. 9. In response, an amended SFC was filed by the Council in which the key remaining contentions related to the adequacy of the documentation submitted to satisfy SEPP 55, including the consequential impacts for earthworks on the site. Concerns were also raised in terms of managing the interface with, and works in, the vegetation within the E3 zone. A revised Stormwater Management Plan was also needed addressing the requirements of the Hornsby Development Control Plan 2013. 10. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation which commenced onsite where one objector, Mrs Cook, addressed the Court and the parties. Mrs Cook is an adjoining resident whose main concerns were with vegetation removal (and the need for seed collection from specific trees and revegetation should this occur), as well as the need to remediate the site. 11. The site was viewed to the extent that areas could be accessed. It was noted that the derelict cottage likely contained asbestos which would also need to be removed during demolition. Much of the conciliation related to the requirements of SEPP 55 that need to be satisfied. Updated documentation in this regard was provided by the Applicant. 12. As a result of the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 13. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) to dispose of the proceedings in accordance with the parties' decision. 14. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 15. In making the orders, I am not required to make a merit assessment of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met. 16. In this regard, detailed conditions of consent are agreed which deal with the remediation of the site. This includes the appointment of a site auditor prior to any demolition works, to review and amend the RAP as required, including to deal with asbestos. Further site testing will be undertaken once the existing cottages are demolished and any issues arising are required to be addressed in an amended RAP and Site Management Plan, overviewed by site auditing once remediation is completed. 17. Given these conditions, I am satisfied that remediation in accordance with the conditions of consent, and compliance with the conditions of the consent, will result in the development and use of the land being acceptable having regard to the requirements of SEPP 55. 18. I am also satisfied that the objectives for the various zones on the site, and the associated relevant controls of the LEP, are also met. This includes by the imposition of conditions of consent which satisfactorily address the earthworks provisions at cl 6.2 of the LEP. 19. The GTAs sought by RMS and RFS have been imposed as conditions of consent in terms of requirements for access to the highway and bushfire protection. 20. I am also satisfied that consideration was given to the submissions lodged on the application. In this regard, I note that conditions require the collection of seeds from the trees to be removed, as specified by Mrs Cook, and the remediation issues are satisfactorily conditioned. Further, the proposed lot sizes comply with the LEP and therefore are an appropriate density for the site given no subdivision or built form is proposed in the E3 zone. 21. There are no other pre-conditions to the granting of consent which are required to be considered. 22. Accordingly, the Court orders that: 1. The Applicant is granted leave to rely upon the following plans and documents (subject to operational condition 2 in Annexure "A") : 1. Concept Civil Works Plan (Revision D), prepared by Martens and Associates dated 24 February 2020; 2. Landscape Plan, specifications and design (Revision C), prepared by Conzept Landscapes dated 20 February 2020; 3. Supplementary Geotechnical Assessment, prepared by Martens and Associates dated 21 February 2020; 4. Revised Remedial Action Plan, prepared by Martens and Associates dated 25 February 2020; 5. Revised Supplementary Detailed Site Investigation Report, prepared by Martens and Associates dated 25 February 2020; 6. Supplementary Arboricultural Report, prepared by Landscape Matrix dated 26 February 2020; and 7. Integrated Bushfire and Vegetation Management Plan prepared by Cumberland Ecology and Advanced Bushfire Performance Solutions dated 28 February 2020. 1. The appeal is upheld. 2. Development Consent is granted to DA/633/2016 for the demolition of existing structures, remediation of contaminated land, subdivision of six allotments into 13 lots in three stages and including two Torrens title lots and 11 community title lots, subject to the conditions in Annexure "A".