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[2026] NSWLEC 1068
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-17
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bongani 2005 Pty Ltd v Hornsby Shire Council [2026] NSWLEC 1068
Hearing dates: Conciliation conference on 10 February 2026
Date of orders: 17 February 2026
Decision date: 17 February 2026
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The Appeal is upheld.
(2) Development Application No DA/114/2024, as amended, for demolition of existing structures and construction of a purpose built two storey building accommodating two health service facilities including parking and landscaping works at 939 Old Northern Road, Dural is determined by the grant of consent subject to the conditions at Annexure ‘A’.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application in the agreed amount of $17,000 within 28 days of these orders being made.
Catchwords: DEVELOPMENT APPLICATION – health service facilities – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Hornsby Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.10, 6.2, 6.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.13
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.59, 2.60, 2.119
Category: Principal judgment
Parties: Bongani 2005 Pty Ltd (Applicant)
Hornsby Shire Council (Respondent)
Representation: Counsel:
M Staunton (Applicant)
T Pham (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2025/80775
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Hornsby Shire Council (Council), of Development Application DA/114/2024 which seeks consent for demolition of existing structures and construction of a commercial building comprising two health service facilities and associated works at 939 Old Northern Road, Dural.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
An initial conciliation conference was held in August 2025, which was unsuccessful. A hearing was subsequently arranged by the Court, however prior to that hearing the parties resolved the issues in dispute between them and requested the Court arrange a further conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). This was held on 10 February 2026.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address the Council's contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 12 February to 4 March 2024, during which time two submissions were received. One resident made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. Of particular focus were concerns relating to an existing access easement and privacy from the rear of the development, both of which were addressed in submissions and adequately considered in the amended application.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submissions and the information contained in the Statement of Environmental Effects by Chapman Planning dated 2 February 2023, I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the intended use.
The site is located within the Hawkesbury-Nepean Catchment and, accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. From the amended Stormwater Management Plan by Quantum Engineers dated 3 November 2025 and the parties’ submission, I accept that the requirements of Ch 6 of the SEPP BC relating to water quality and quantity (s 6.6) and aquatic ecology (s 6.7), are met by the proposed development. I further accept that the proposed development is not on flood liable land and will not have any impact on flooding (s 6.8), does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10). Finally, I accept that the parties have considered the matters relating to Hawkesbury-Nepean conservation area sub-catchments as set out in s 6.13(2), and that the proposed development is acceptable when considered against these matters.
The subject site is zoned RU5 – Village under the Hornsby Local Environmental Plan 2015 (HLEP). Development for the purposes of a health facility is not permissible within this zone, however pursuant to s 2.60(1) and the definition of ‘prescribed zone’ in s 2.59 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), this proposed development is permissible. I note further that the proposed development is consistent with the relevant objectives of the RU5 zone.
The development has frontage to a classified road, and therefore the provisions of SEPP TI s 2.119 apply. A Traffic and Parking Assessment Report by Varga Traffic Planning Pty Ltd dated 9 January 2024 accompanies the Class 1 application. From this, and noting that concurrence has been provided by Transport for New South Wales on 9 December 2025, I accept that the proposed development meets the requirements of s 2.119(2).
Pursuant to HLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development exceeds this development standard with a maximum height of 8.8m. Pursuant to HLEP cl 4.6, the applicant has submitted a request to vary the landscaped area development standard, by Planning Ingenuity dated 2 October 2025. From this written request, I am satisfied that compliance with this development standard is unreasonable or unnecessary in these circumstances because the proposed development complies with the relevant objectives of the Height of Buildings development standard, notwithstanding the non-compliance. The request demonstrates sufficient environmental planning grounds to justify breaching the development standard because: the height exceedance is the combined result of the natural site topography and the levels required for effective operation of the On-site Stormwater Detention; and the non-compliance is numerically minor, and does not result in any adverse amenity impacts.
HLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1. The proposed development complies with this development standard with an FSR of 0.47:1.
The site is not identified as a heritage item nor located within a heritage conservation area, however it adjoins the Uniting Church and Chapel, local heritage item I351. From the parties’ submission and the Statement of Heritage Impact by Three + One Heritage dated 1 February 2024, I accept that the proposed development will not have an adverse impact on the adjoining heritage item and that it is acceptable when considered against HLEP cl 5.10.
HLEP cl 6.2 identified matters for consideration relating to earthworks. From the parties’ submission and the Geotechnical Report by Fortify Geotech dated December 2023, I accept that these matters have been considered, and the proposed earthworks are acceptable.
HLEP cl 6.6 places restrictions on certain development in Dural Village. Pursuant to cl 6.6(3)(b), the development must have a maximum gross floor area of 100 square metres for development including health consulting rooms. This development exceeds this, with a gross floor area of 379.14m2. Although the parties have submitted that this clause is inconsistent and incompatible with s 2.60 of the SEPP TI, they have also filed a request by Planning Ingenuity dated 10 February 2026, pursuant to cl 4.6 of the HLEP, to vary the development standard within this clause. From this request, I am satisfied that compliance with this development standard is unreasonable or unnecessary in these circumstances because the proposed development complies with the relevant objectives of this development standard, notwithstanding the non-compliance. Further, the request demonstrates sufficient environmental planning grounds to justify breaching the development standard because: the non-compliance will not create additional amenity impacts when compared to a compliant development; and the development remains consistent with the character of the Dural Village.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
Hornsby Shire Council, as the relevant consent authority, has approved, under s 38(1) of the EPA Regulation, to the Applicant amending Development Application DA/114/2024 to include the following documents:
| TAB | DOCUMENT | DATE | | 1 | Amended Architectural drawings prepared by Carter Williamson, as follows: | Individually dated: | | Plan No. | Title | Issue | Date | | DD2-00-01 | Perspective View 1 | A | 29 September 2025 | | DD2-10-01 | Location Plan | B | 29 September 2025 | | DD2-10-02 | Site Analysis Plan | B | 29 September 2025 | | DD-10-03 | Demolition Plan | D | 17 November 2025 | | DD-10-04 | Site Plan | K | 13 January 2026 | | DD-10-05 | Tree Encroachment Plan | D | 16 October 2025 | | DD2-10-06 | Ground Floor Plan | E | 13 January 2026 | | DD2-10-07 | Level 1 Plan | E | 13 January 2026 | | DD2-10-08 | Roof Plan | C | 29 September 2025 | | DD2-10-09 | FSR Diagram | C | 13 January 2026 | | DD2-10-10 | Landscaped Area Diagram | C | 17 November 2025 | | DD2-10-11 | Shadow Diagram – Mar 22 | B | 17 November 2025 | | DD2-10-12 | Shadow Diagram – June 21 | B | 17 November 2025 | | DD2-10-13 | Shadow Diagram – Dec 22 | B | 17 November 2025 | | DD2-10-14 | On-going Waste Management Diagram | B | 17 November 2025 | | DD2-20-01 | Section A | D | 17 November 2025 | | DD2-20-02 | Section B | C | 29 September 2025 | | DD2-20-03-B | Section H. | B | 11 December 2025 | | DD2-30-01 | Elevation 01 | C | 17 November 2025 | | DD2-30-02 | Elevation 02 | B | 29 September 2025 | | DD2-30-03 | Elevation 03 | C | 17 November 2025 | | DD2-30-04 | Elevation 04 | B | 29 September 2025 | | DD2-70-01 | Height Plane Diagram | B | 29 September 2025 | | DD2-70-02 | External Materials and Finishes Schedule | A | 17 November 2025 | | 27 | Amended Landscape Plans prepared by Site Image, as follows: | Dated: | | L-100 | Composite Landscape Plan | D | 29/09/2025 | | L-201 | Planting Plan - Ground Floor | D | | L-202 | Planting Plan – Level 1 | D | | L-500 | Landscape Specification Notes & Plant Schedule | D | | L-501 | Landscape Details | D | | 33 | Amended Stormwater Management Plans, prepared by Quantum Engineers | Dated: | | 01 | D1 DETAILS, NOTES & LEGEND I | J | 3 November 2025 | | 02 | D2 SITE / GROUND FLOOR PLAN I | J | | 03 | D3 OSD 'DRAINS' MODEL & DATA I | J | | 04 | D4 OSD 'DRAINS' RESULTS I | J | | 05 | D5 BELOW GROUND OSD TANK DETAILS I | J | | 06 | D6 OSD CATCHMENT PLAN I | J | | 07 | D7 STORMWATER DETAILS I | J | | 08 | D8 CATCHMENT MAP & HGL L'SECTION & DETAILS I | J | | 09 | D9 'DRAINS' CATCHMENT ANALYSIS MODEL & RESULTS I | J | | 10 | D10 SEDIMENT CONTROL PLAN I | J | | 11 | D11 SEDIMENT CONTROL DETAILS I | J | | 45 | Arboricultural Impact Assessment, prepared by Bellevue Tree Consultants | 20 October 2025 | | 46 | Acoustic Report, prepared by PKA Acoustic Consulting | 29 September 2025 | | 47 | Clause 4.6 Variation Statement – Height of Buildings, prepared by Planning Ingenuity | 2 October 2025 | | 48 | Obtrusive Light Assessment, prepared by Lighting, Art & Science Pty Limited | 30 September 2025 | | 49 | Hydraulic Design Sheets (Rev.4), prepared by Greenview Consulting • Sheet H01 • Sheet H02 • Sheet H03 | 30/09/2025 | | 50 | Plan of Management, prepared by Planning Ingenuity | 26 November 2025 | | 51 | Parking and Design Statement, prepared by PDC Consultants | 29 September 2025 | | 52 | On-Site Wastewater Management Report, prepared by Whitehead & Associates Environmental Consultants | 8 January 2026 | | 53 | Clause 4.6 Variation Statement – Clause 6.6 of HLEP, prepared by Planning Ingenuity | 10 February 2026 |
The Court orders:
The Appeal is upheld.
Development Application No DA/114/2024, as amended, for demolition of existing structures and construction of a purpose built two storey building accommodating two health service facilities including parking and landscaping works at 939 Old Northern Road, Dural is determined by the grant of consent subject to the conditions at Annexure ‘A’.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application in the agreed amount of $17,000 within 28 days of these orders being made.
Annexure A (497 KB, pdf)
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Bongani 2005 Pty Ltd
Hornsby Shire Council [2026] NSWLEC 1068