Herbert v Hornsby Shire Council

File Number(s): 2025/165830

Publication restriction: Nil

Judgment

1. COMMISSIONER: The Applicants appeal against Order No 12 (Order) issued pursuant to s 124 of the Local Government Act 1993 (NSW) (LG Act) by Hornsby Shire Council (Council) on 3 April 2025 in relation to Lot 20 in Deposited Plan 221625 known as 17 Mittabah Road, Hornsby (Site).

2. The Site is located within the Sydney Water Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021*.*

3. The Site is an irregular shape, approximately 794m2 in area, and is located on the northern side of Mittabah Road in Hornsby.

4. The Site has a 16m south-eastern frontage to Mittabah Road, a 48m western side boundary to No 15 Mittabah Road, and a 35m eastern side boundary to No 19 Mittabah Road Hornsby. At the rear, the Site shares a common boundary to the north with:

5. 1 Katta Close (Lot 1 in Deposited Plan 814687);

6. 1A Katta Close (Lot 2 in Deposited Plan 814687).

7. The Site has a steep cliff at the rear, which drops 9.0m to 1A Katta Close.

8. The Site is not affected by the 1:100 Annual Exceedance Probability flooding event in the Council’s planning controls.

9. The Site is not identified as an overland flow path in Council’s planning controls.

10. The Site is zoned R2 Low Density Residential pursuant to cl 2.3 and the Land Use Table of Hornsby Local Environmental Plan 2013.

11. The Applicants have appealed pursuant to s 180(1) of the LG Act, and within the time from pursuant to s 180(3) of the LG Act.

12. The proceedings fall within Class 2 of the Court’s jurisdiction pursuant to s 18(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

13. The statutory power or function to be exercised by the Court is s 180(4)(b) of the LG Act as set out below:

180 Appeals concerning orders

(1) A person on whom an order is served may appeal against the order to the Land and Environment Court.

(2) (Repealed)

(3) The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 141, within 28 days after the service of the order given under section 141 on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period.

(4) On hearing an appeal, the Court may—

(a) revoke the order, or

(b) modify the order, or

……

(5) This section does not apply in relation to order No 22A in the Table to section 124.

12. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 15 October 2025, 3 November 2025 and a s 34 Agreement was filed on 17 November 2025 (a date to which the s 34 conciliation conference had been adjourned). I presided over the conciliation conference.

13. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal, and modifying the Order to control the flow of surface water across the Site.

14. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 180(4)(b) of the LG Act to modify the Order so as to better control the flow of surface water across the Site. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied, as set out below:

15. The Council gave the Applicants Notice of Intention to Issue Proposed Order in accordance with s 124 Order 12 of the LG Act on 14 February 2025 (Notice of Intention).

16. The Notice of Intention was given in accordance with s 132 of the LG Act.

17. The Applicants made representations to Council pursuant to a letter from Apex Planning and Environment Law dated 28 February 2025 in accordance with s 133(1) of the LG Act.

18. Council issued the Order on 3 April 2025 after considering the Applicant’s representations made on 28 February 2025, in accordance with s 135(1)(a) of the LG Act.

19. The Class 2 appeal was commenced within 28 days, being the time provided in s 180(3) of the LG Act;

20. The Applicants are the owners of the Site and are the persons to whom the Order can be issued.

21. The circumstances exist for the issue of the Order, and modification of the Order, being that the flow of surface water across the Site is damaging, or is likely to damage, the adjoining land and buildings at 1 and 1A Katta Close, Hornsby NSW.

22. The works proposed by the modified Order are to control the flow of surface water across the Site, pursuant to s 180(4)(b) of the LG Act.

23. As set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

24. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall uphold the appeal and modify the Order.

25. The Court orders:

26. The appeal is upheld.

27. Pursuant to s 180(4)(b) of the Local Government Act 1993 (NSW), the Order, issued by the Respondent to the Applicants pursuant to s 124 of the Local Government Act 1993 (NSW), is modified as set out in Annexure “A”.

M Peatman

Acting Commissioner of the Court

Annexure A (161 KB, pdf)

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