Walton v Hawkesbury City Council

Parties: Philip Walton (Applicant)
Hawkesbury City Council (Respondent)

Representation: Counsel:
J Doyle (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
DirectLaw (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/373937

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by the Hawkesbury City Council (Respondent) on 30 May 2024 of Development Application DA0406/22 (Development Application) lodged with the Respondent on 14 December 2022 by the Waltons who are together the registered proprietors of the site (Applicant) for the construction of a dwelling house, outbuilding (shed), driveway, wastewater system and rainwater tank on the site.

2. The development application relates to land legally identified as Lot 4 in Deposited Plan 579215 and known as 152 Mountain Avenue, Yarramundi.

3. Specifically, the site:

4. is located on the northern side of Mountain Avenue and adjoins the Grose River to the northern boundary.

5. is irregular in shape, with a 291.93m frontage to Mountain Avenue, a depth of 469m, and a total area of 20.77 hectares.

6. slopes downwards from the street frontage towards the rear boundary, with a fall of approximately 71m over the length of the site.

7. contains shipping containers and machinery, while an access driveway and sandstone retaining wall occupy the south-east corner of the site along the street frontage.

8. is located within the C4 Environmental Living zone under the Land Zoning Map of Hawkesbury Local Environmental Plan 2012 (HLEP 2012).

9. is identified as bushfire prone land.

10. The locality is characterised by residential development within a rural setting of varying architectural style.

11. The Development Application was not required to be notified in accordance with the Hawkesbury Community Participation Plan.

12. On 30 May 2024, The Development Application was refused by Council and included the following reasons:

13. The Development Application does not comply with the objectives of cl 2.3 Zone objectives and Land Use Table of Hawkesbury Local Environmental Plan 2012 (HELP).

14. The Development Application does not comply with the objectives of cl 6.2 Earthworks of HLEP.

15. The Development Application does not comply with the objectives of cl 6.4 Terrestrial Biodiversity of HLEP.

16. The Development Application does not comply with Clause 1.3 Height of Hawkesbury Development Control Plan 2002 (HDCP).

17. The Development Application does not comply with Clause 1.9 Vehicle Access and Car Parking of HDCP.

18. The Development Application does not comply with Part D Chapter 8, Clause 8.5.1 Farm Buildings and Outbuildings of HDCP.

19. On 9 October 2024, the Applicant commenced Class 1 proceedings against the refusal of the Development Application.

20. The parties participated in a conciliation conference convened in the proceedings as required by s 34AA (2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) on 5 and 6 August 2025. I presided over that conference.

21. At that conciliation conference the parties reached agreement as to the terms of a development consent for the same form of development as that described at paragraph 4, but with changes made to address the contentions in the proceedings.

22. Accordingly, the parties reached agreement on the matters in contention and a signed agreement was submitted to the Court on 6 August 2025, in accordance with s 34(10) of the LEC Act.

23. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

24. The agreement approves the development subject to amended reports that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement, and identify:

25. The use of the portion of the site to be as shown in the DA plans.

26. The footprint for the new residence to be generally in accordance with and not to exceed the boundaries of the footprint for the residence shown in the DA plans and plans to be amended to reflect the house design in the relocated area.

27. The outbuilding (shed) is to be retained but to be accessed by a new driveway from the south and the gate currently limiting access along mountain road is to be widened to 4 metres. The existing driveway access at the south eastern corner of the property is also approved for use to access the residence.

28. The effluent system is to be updated so as not to encroach within the TPZ of any tree as depicted in Figure 4.1 of the updated Enviro Ecology Plan dated 5 August 2025.

29. Approval is granted for removal of a total of 13 trees as marked on Figure 4.1 of the updated Enviro Ecology Plan dated 5 August 2025.

30. The development is to include an updated VMP and Bushfire Hazard Assessment, with the VMP to include the Koala Tree Replenishment Plan dated 5 August 2025 prepared by Enviro Ecology and include a tree replacement ratio of 4 koala feed trees for each 1 tree removed according to a Koala Tree Replenishment Plan being 52 trees in total.

31. The BAL 29 extent is to be treated as a modified outer protection area (OPA).

32. 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 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.

33. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

34. The site is located within the C4 Environmental Living zone under the Land Zoning Map of HLEP in which dwelling house development is permitted with consent with the following objectives in the C4 zone:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To restrict development on land that is inappropriate for development because of its physical characteristics or bushfire risk.

• To ensure that land uses are compatible with existing infrastructure, services and facilities and with the environmental capabilities of the land.

• To encourage existing sustainable agricultural activities.

• To ensure that development does not create or contribute to rural land use conflicts.

• To promote the conservation and enhancement of local native vegetation, including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation.

• To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways.

16. For the reasons set out below I am satisfied that these objectives are met by the conditions of consent at Annexure A.

Hawkesbury Local Environmental Plan 2012

17. Clause 6.2 Earthworks;

(1) The objectives of this clause are as follows—

(a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b) to allow earthworks of a minor nature without requiring separate development consent.

(2) Development consent is required for earthworks unless—

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks are ancillary to other development for which development consent has been given.

(3) Before granting development consent for earthworks, the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

18. The Development Application originally proposed excavation in relation to the outbuilding (shed). No significant excavation is now required.

19. Clause 6.4 Terrestrial Biodiversity:

(1) The objective of this clause is to maintain terrestrial biodiversity by—

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land identified as “Significant vegetation” and “Connectivity between significant vegetation” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a) whether the development—

(i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land.

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

20. The site is mapped for Terrestrial Biodiversity in the HLEP (map sheet ‘BIO_008BA’), so cl 6.4(3) applies. The relevant environmental objectives under the zoning C4 Environmental Living also apply.

21. I am satisfied the biodiversity issues to be considered [19] are addressed by the reports provided, being

22. Flora and Fauna Assessment by Enviro Ecology dated 6 September 2023,

23. amended documentation being the Arboricultural Impact Assessment dated 5 August 2025,

24. the Vegetation Management Plan dated 16 May 2025 to be updated under the conditions of consent and,

25. the Addendum Ecological Impact Assessment dated 29 July 2025.

26. For the granting of consent under cl 6.4(4), I note that in the Joint Ecology Report (JER) the experts agree the previously cleared area of 0.7 ha is the best location for the dwelling and associated structures and I am satisfied with their assessment.

Biodiversity Conservation Act 2016 (NSW)

23. Part 7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) applies to the assessment of impacts of the development application.

24. Section 7.2 deals with development or activity “likely to significantly affect threatened species” and provides as follows:

(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if—

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b) the development exceeds the biodiversity offsets scheme threshold, or

(c) it is carried out in a declared area of outstanding biodiversity value.

…

25. Section 7.3 the test, known as the five part test, for determining whether proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, provides:

(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats—

(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity—

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c) in relation to the habitat of a threatened species or ecological community—

(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

(2) The Minister may, by order published in the Gazette with the concurrence of the Planning Minister, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.

26. Section 7.7 Biodiversity assessment for Pt 4 development (other than State significant development or complying development) provides the following:

(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except—

(a) an application for development consent for State significant development, or

(b) an application for a complying development certificate.

(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.

…

27. The assessment of impacts under the BC Act s 7.2 (1)(b), is required if development exceeds the biodiversity offsets scheme threshold of 1 ha where a biodiversity development assessment report (BDAR) is required. The vegetation proposed for removal has been assessed at 0.79ha and I am satisfied that the 1 ha BDAR threshold has not been met and a BDAR is not required.

Jurisdictional Matters

Environmental Planning and Assessment Act 1979 (NSW)

28. Section 4.15 Evaluation sets out:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

…

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

…

29. The Parties agree, and I am satisfied, that the applicable matters have been taken into consideration.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

30. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) Ch 4 aims to encourage the conservation and management of areas of natural vegetation that provide habitat for koalas to support a permanent free-living population over their present range and reverse the current trend of koala population decline.

31. Koala feed trees occur on the site and there is a recent Koala record within 1km of the site. Part 4.9 applies as the site has an area of over 20ha and there is no approved koala plan of management for the land.

4.9 Development assessment process—no approved koala plan of management for land

(1) This section applies to land to which this Chapter applies if the land—

(a) has an area of at least 1 hectare (including adjoining land within the same ownership), and

(b) does not have an approved koala plan of management applying to the land.

(2) Before a council may grant consent to a development application for consent to carry out development on the land, the council must assess whether the development is likely to have any impact on koalas or koala habitat.

(3) If the council is satisfied that the development is likely to have low or no impact on koalas or koala habitat, the council may grant consent to the development application.

(4) If the council is satisfied that the development is likely to have a higher level of impact on koalas or koala habitat, the council must, in deciding whether to grant consent to the development application, take into account a koala assessment report for the development.

(5) However, despite subsections (3) and (4), the council may grant development consent if the applicant provides to the council—

(a) information, prepared by a suitably qualified and experienced person, the council is satisfied demonstrates that the land subject of the development application—

(i) does not include any trees belonging to the koala use tree species listed in Schedule 3 for the relevant koala management area, or

(ii) is not core koala habitat, or

(b) information the council is satisfied demonstrates that the land subject of the development application—

(i) does not include any trees with a diameter at breast height over bark of more than 10 centimetres, or

(ii) includes only horticultural or agricultural plantations.

(6) In this section—

koala assessment report, for development, means a report prepared by a suitably qualified and experienced person about the likely and potential impacts of the development on koalas or koala habitat and the proposed management of those impacts.

32. A Koala Assessment Report as per s 4.2 of the Biodiversity SEPP was prepared and provided by the Applicant (Appendix D to the updated Flora and Fauna Assessment). There were no observations of koalas, scats, scratch marks or other evidence of koala activity were recorded. A confirmed koala report with 1km of the site was noted in the records.

33. The Applicant's ecologist John Whyte of Enviro Ecology is a properly authorised and qualified person and has determined that with the measures proposed in the Development Application and required by the conditions in Annexure A, the ecological impact of the proposal and the potential impacts on koalas and koala habitat is properly managed in accordance with the plans identified.

State Environmental Planning Policy (Resilience and Hazards) 2021

34. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) is applicable to the development application. Page 6 of the Statement of Environmental Effects filed with the Class 1 Application confirms the land is acceptable for the proposed residential use.

State Environmental Planning Policy (Sustainable Buildings) 2022

35. The application is accompanied by a BASIX certificate (Cert No. 1268553S_02 dated 01 November 2022) prepared by Sustainability-Z Pty Ltd in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

36. The Court notes in passing that as the Development Application was lodged prior to 1 October 2023, the embodied emissions attributable to the proposed development in accordance with s 2.1(5) of the Sustainable Buildings SEPP are not required as part of the BASIX Certificate.

Hawkesbury Development Control Plan 2002

37. I am satisfied that the issues of building height (Clause 1.3), vehicle access and parking (Clause 1.9) and Farm buildings and outbuildings (Part D Chapter 8, Clause 8.5.1) have been addressed by the Parties in the conditions of consent.

Conclusion

38. 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.

39. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

40. The parties have reached an agreement pursuant to s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision the Court could have made in the proper exercise of its functions).

41. The Court notes that, Hawkesbury City Council, as the relevant consent authority, has agreed, under ss 37(1) and 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No. DA0406/22 to include the following documents:

| Drawing Reference No. | Drawing Description | Date | | 2226-CO5 5 of 17 | Elevations / Sections | 03.05.25 | | 2226-CO6 – 6 of 17 | Elevations / Sections | 03.05.25 | | 2226-CO3 – 3 of 17 | Ground Floor Plan | 03.05.25 | | 2226-C10 – 10 of 17 | Rural Shed Floor / Roof Plan | 03.05.25 | | 2226-C11 – 11 of 17 | Rural Shed Sections | 05.05.25 | | 2226-C13 – 13 of 17 | Site Service Plan B (min Effluent Irrigation Area) | 05.05.25 |

| Amended Arboricultural Impact Assessment | Rev D | Hunter Ecology | 5 August 2025 | | Vegetation Management Plan | 55-110 | Hunter Ecology | 16 May 2025 | | Amended Bushfire Report | 111-143 | Control Line Consulting | | | Addendum Ecological Impact Assessment | 144-157 | Hunter Ecology | 29 July 2025 | | Koala Tree Replenishment Plan | Map Version 2.1 | Hunter Ecology | 5 August 2025 |

42. The documents listed above were filed with the Court on 8 August 2025.

Orders

43. The orders of the Court are:

44. The appeal is upheld.

45. Development Application No. DA0406/22 for the construction of a dwelling house building footprint, driveway and shed at 152 Mountain Avenue, Yarrramundi is determined by the grant of consent subject to the condition of consent at Annexure A**.**

P Moore

Acting Commissioner of the Court

**********

Annexure A (483 KB, pdf)