Land and Environment Court New South Wales Medium Neutral Citation: Doyle v Hornsby Shire Council [2020] NSWLEC 1155 Hearing dates: Conciliation conference on 4-5 March 2020 Date of orders: 03 April 2020 Decision date: 03 April 2020 Jurisdiction: Class 1 Before: Walsh C Decision: Refer to orders at [6] Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Category: Principal judgment Parties: James Patrick Doyle (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: J Doyle (Solicitor) (Litigant in Person) (Applicant) S Nash (Respondent) Solicitors: Marsdens Law Group (Respondent) File Number(s): 2019/193226 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the Respondent's determination of a modification application originally made pursuant to s 4.55(1A) of the EP&A Act. 2. The modification application (DA/1825/2001/B) sought to modify Development Consent No. DA/1825/2001 issued by the Respondent on 20 December 2001 for the erection of a dwelling house, swimming pool and associated works on a battleaxe lot at No. 80A Manor Road, Hornsby, legally described as Lot 12 in DP 735549. The modification was described, as follows: "Alter the design of the driveway under the original consent." 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 4-5 March 2020 and at which I presided. Following the conciliation conference, the parties came to an 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 consent to the modification application under s 4.55(2) of the EP&A Act. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In particular they drew my attention to an assessment report prepared by the Council in regard to the matter (Council's Bundle of Documents filed 28 February 2020, behind Tab 8) 2. In regard to jurisdiction, I find as follows: 1. Having regard to s 4.55(2)(a), I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted (there has been no successful prior modification of the consent). This is because the original consent involved a driveway essentially and materially the same as that now proposed. 2. Having regard to ss 4.55(2)(b) and (c), I am satisfied with the advice of Council that proper notification and consultation has occurred. 3. Having regard to s 4.55(2)(d), I am satisfied that consideration has been given to submissions, including in regard to amendments to the application in the recent past, with Council providing me with copies of the relevant correspondence. 4. Having regard to s 4.55(3) of the EP&A Act, I have reviewed and taken into consideration relevant matters under s 4.15(1) of the EP&A Act. The assessment undertaken by Council as documented in the report Council's Bundle of Documents filed 28 February 2020 (behind Tab 8), has assisted me in that regard. I have considered whether the land is contaminated and accept the analysis contained in this report finding that there is no need for further assessment under cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, and that the proposal would meet the aims of the Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997). I accept that there has been adequate scrutiny by the experts in coming to the agreed position in regards to access and stormwater. I have also reviewed the consent that is sought to be modified, and have had regard to reasons for the consent implicit in the conditions. The assessment report referenced above outlines some background relevant to the reasoning behind the original consent which I have taken into consideration. 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court orders: 1. The Applicant is granted leave to amend Modification Application No. DA/1825/2001/B and rely upon the following amended plans: Drawing No. Drawing Title Drawn by Rev Dated 1001 Road Layout Marblaze E 16 March 2020 1002 Long Section Marblaze C 16 March 2020 1003 Cross Section Ch 0 to Ch. 10 Marblaze B 16 March 2020 1004 Cross Sections – Chn 15-25 Marblaze E 16 March 2020 1005 Cross Sections – Chn 30 – 40 Marblaze E 16 March 2020 1006 Cross Sections – Chn 50-60 Marblaze D 16 March 2020 1007 Drainage Plan Marblaze B 16 March 2020 1008 Drainage Details Marblaze A 9 March 2020 1013 Curve Outer Edges Long Sections Marblaze C 16 March 2020 1014 Car Swept Path at Bends Marblaze B 16 March 2020 1018 Ground Clearance Details Marblaze B 16 March 2020 1. The appeal is upheld. 2. Modification Application No. DA/1825/2001/B for an amended driveway design is approved. 3. Development Consent No. DA/1825/2001 originally issued by the Respondent on 20 December 2001 for the erection of a dwelling house, swimming pool and associated works is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure "A". 4. As a consequence of Order 2.3, Development Consent No. DA/1825/2001 is subject to the consolidated, modified conditions of consent set out in Annexure "B". ………………………. Peter Walsh Commissioner of the Court Annexure A (40.5 KB) Annexure B (104 KB) Plans (1.94 MB) ********** 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: 06 April 2020