Smith v Hawkesbury City Council [2022] NSWLEC 1690

Land and Environment Court New South Wales

Medium Neutral Citation: Smith v Hawkesbury City Council [2022] NSWLEC 1690 Hearing dates: Conciliation conference 8 December 2022 Date of orders: 8 December 2022 Decision date: 08 December 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Appeal is upheld. (2) Development consent is granted to DA0007/22, for a Secondary dwelling and addition of a Games room to the existing Cabana that is associated with the existing principal dwelling on the land legally described as Lot 4 DP 843500, known as 66 Canoona Avenue, Windsor Downs subject to the conditions at Annexure A. Catchwords: APPEAL – development consent for a secondary dwelling and games room – appeal against determination subject to conditions – conciliation conference – amendment of development application to remove garage from proposed secondary dwelling – agreement reached – orders made Legislation Cited: Environment Planning and Assessment Regulation 2000, cl 55, Sch 1 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Hawkesbury Local Environmental Plan 2012, s 6.4 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 4, 9, Pt 4.2, ss 4.9, 6.65, 9.3 State Environmental Planning Policy (Housing) 2021, ss 52, 53 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Dean Cooper Thomas Smith (First Applicant) Rosemary Diane Smith (Second Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: S Berveling (Applicants) A Seton (Solicitor) (Respondent)

Solicitors: Donald John Shaddick (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/231076 Publication restriction: Nil

Judgment 1. COMMISSIONER: This appeal concerns the grant of consent DA0007/22 for a secondary dwelling at 66 Canoona Avenue, Windsor Downs, subject to conditions with which the applicants are dissatisfied. Those conditions require design amendments to the plans to remove certain additions that formed part of the development application. Whilst the appeal was initially lodged following the expiry of the period after which a development application is deemed to be refused, the development application was subsequently determined subject to conditions and the Class 1 Application was amended to appeal against that determination. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). As there is no right to appeal against the conditions of a development consent, the appeal concerns the whole of the decision made by the Council. In considering the appeal, the Court re-exercises the functions of the Council in determining the application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 8 December 2022. 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 agreement follows an amendment to the development application to remove the garage that was previously proposed to be attached to the proposed secondary dwelling. The amendment is reflected in a changed description of the development for which consent is sought. The Council has agreed to that amendment to the development application, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. The development application, as amended, is for the construction of a secondary dwelling without a garage, and for an addition to the cabana to create a games room, which is an outbuilding associated with the existing dwelling on the site. 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 deletion of the garage is reflected in condition 2. The signed agreement is supported by a jurisdictional statement, which sets out the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of this statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in condition 1, and the development assessment report prepared by the Council's senior town planner, dated 3 August 2022. 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 extension of the cabana to accommodate a games room is associated with the use for the purpose of the existing dwelling, which is a permissible use in the R5 Large Lot Residential zone, pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP 2012). * Whilst development for the purposes of a secondary dwelling is prohibited in the zone pursuant to the HLEP 2012, it is permissible pursuant to s 52(1) of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing). As a result of the deletion of the garage, the proposed secondary dwelling complies with s 52(2), and with the non-discretionary development standards in s 53(2) of the SEPP Housing. * The proposed development does not breach any development standards in the HLEP 2012 or any other applicable environmental planning instrument. * The site contains land that is identified as "significant vegetation" and "connectivity between significant vegetation" on the Terrestrial Biodiversity Map, and therefore cl 6.4 of the HLEP applies. As the proposed development is to be carried out on parts of the land that are already cleared and that do not contain vegetation so identified, I have considered the matters in cl 6.4(3) and I am satisfied of the matters in cl 6.4(4). * Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to the site. As there is no vegetation clearing proposed in the development and the area on which the secondary dwelling and games room is proposed is already cleared, there is no potential impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.9(3) of Part 4.2 of the SEPP B&C. * Pursuant to s 6.65 of the SEPP B&C, the repealed Ch 9 of the SEPP B&C continues to apply to the proposed development. Chapter 9 concerns the Hawkesbury-Nepean River system. Based on the assessment report and the documents accompanying the Class 1 Application, I have considered the matters required to be considered by s 9.3. * 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. As the area of the site where the development works will occur has a history of use for residential purposes, it is unlikely to be contaminated. * The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 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 notes that: 1. Hawkesbury City Council, as the relevant consent authority, has consented (pursuant to clause 55 of the Environment Planning and Assessment Regulation 2000) to the Applicant amending Development Application No. DA0007/22 by changing the description of the development to be: "Secondary dwelling and addition of Games room to the existing Cabana that is associated with the existing principal dwelling." 1. The Court orders that: 1. The Appeal is upheld. 2. Development consent is granted to DA0007/22, for a Secondary dwelling and addition of a Games room to the existing Cabana that is associated with the existing principal dwelling on the land legally described as Lot 4 DP 843500, known as 66 Canoona Avenue, Windsor Downs subject to the conditions at Annexure A.

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Joanne Gray

Commissioner of the Court Annexure A (186801, pdf)

********** 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: 08 December 2022