Weekes v Hawkesbury City Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Hawkesbury Development Control Plan 2023
Hawkesbury Development Control Plan 2002

Category: Principal judgment

Parties: James Weekes (Applicant)
Hawkesbury City Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/378628

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is lodged by Mr Weekes pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the actual refusal of development application DA0149/25. As amended the development application (DA) seeks consent for demolition works and use of an existing structure as a boat shed. The development is proposed at 20 Manns Road, Wilberforce (Lot 4 DP39350).

2. A conciliation conference was held between the parties on 30 March 2026 pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached an agreement based on an amended demolition plan and amended flood impact assessments. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that:

4. Landowners consent was provided by the owner of the land at the time of lodgement of the DA.

5. The DA was notified by the Respondent between 16 and 30 May 2025. No submissions were received by the Respondent.

6. Sections 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the DA as the southern part of the site (including the area containing the proposed boat shed) is located in the Coastal Use Area and the Coastal Environment Area. I have reviewed the Applicant’s amended Statement of Environmental Effects (SEE) prepared by Urban City Group and dated 19 March 2026 and find that a suitable assessment of the proposal is made against ss 2.10 and 2.11 of SEPP RH. Further, for the reasons outlined in the SEE and through the conditions of consent at Annexure A, I accept the agreed position of the parties that the boat shed use and reduction in size has been designed, sited and will be managed to minimise its impacts (ss 2.10(2)(b) and 2.11(2)(b) SEPP RH).

7. Section 4.6 of SEPP RH requires the consent authority to consider the contamination of the land when determining the DA. The SEE considers whether the site is contaminated. The SEE outlines the history of the site as far back as 1963 and details the on-going residential use of the site, which is currently occupied by a dwelling house and the boat shed. On the basis of the preceding information, I accept the agreed position of the parties that the site is unlikely to be contaminated, and I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the DA.

8. The site is located within the Hawkesbury-Nepean Catchment, which is a regulated catchment and therefore, Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. Sections 6.6–6.10 of SEPP BC contain matters the consent authority must consider before the grant of consent, which deal with mandatory water quality, aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the relevant regulated catchment, and adverse environmental impacts on any adjacent or downstream local government areas. In undertaking these considerations, I am assisted by the SEE, the architectural plans and demolition plan, as well as the agreed position of the flood experts (and accompanying flood documentation referenced in the conditions at Annexure A). The extent of development proposed under the DA is limited, being use of and partial demolition of the boat shed, and other minor demolition works on site. There is no clearing of vegetation proposed and there are no known wetlands or significant aquatic ecology that will be affected by the proposed use and demolition works. Further, as detailed in the stormwater design, the proposed development will not result in an adverse release of pollutants or affect water quality in the locality nor alter the natural recession of water as the boat shed has guttering and pipes that are connected to rainwater tanks. Additionally, the conditions of consent require that no hazardous materials, fuels, oils or other potential contaminants shall be stored or kept within the boat shed at any time.

9. The site is within 100m of the Hawkesbury Nepean River (a natural waterbody). I have considered the matters at s 6.11 of the BC SEPP, and I am satisfied that the ‘boat shed’ land use abutting the natural water body is a water dependant land use (s 6.11(a)) and that the DA, inclusive of proposed demolition plans does not result in and minimises conflict between land uses (s 6.11(b).

10. Pursuant to s 6.12 of the BC SEPP, the site is located in a Riverine Scenic Area. Based on the assessment contained in the SEE and from my own inspection of the boat shed on site, as well as through the demolition plan accompanying the DA, I accept the agreed position of the parties that the DA has considered the matters in s 6.12(2), and I am satisfied that the proposed boat shed use, and accompanying demolition works minimise the impact on the scenic quality of the Riverine Scenic Area (s 6.13(2)).

11. Pursuant to s 6.13, the Site is located within the Middle Nepean and Hawkesbury River sub-catchment of the Hawkesbury-Nepean catchment. Based on the assessment contained in the SEE and from my own inspection of the boat shed on site, as well as through the demolition plan, I accept the agreed position of the parties that the DA has satisfactorily considered the matters in s 6.13(2).

12. In relation to the required considerations at s 6.20(3) On Site Domestic Sewerage Systems of the BC SEPP, the DA is accompanied by a Wastewater Report which confirms that the existing on site sewerage management system has capacity to service the boat shed, with the inclusion of an upgrade to the effluent disposal area in the DA. Based on this Wastewater Report and the effluent area work proposed, I accept the agreed position of the parties that s 6.20 of the BC SEPP is satisfied.

13. The site is subject to the provisions of the Hawkesbury Local Environmental Plan 2012 (LEP 2012) and is zoned RU5 Village. ‘Boat shed’ is a permissible use with consent in the zone (cl 2.3). In determining the DA, I have also considered the objectives of the zone.

14. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2012. Minor demolition works are proposed by the DA.

15. The maximum building height development standard under cl 4.3 of LEP 2012 is 10 metres. The architectural plans show that the existing boat shed use is approximately 6.6 metres in height, which is below the LEP 2012 height development standard.

16. The Site is in the flood planning area which attracts the jurisdictional prerequisite provisions in cl 5.21 of the LEP 2012. The DA as amended is accompanied by a Flood Impact Assessment Report (Revision 4) prepared by Orion Engineers dated 23 March 2026, a Flood Emergency Response Plan prepared by Barker Ryan Stewart dated 23 March 2026 and an amended Demolition Plan dated 19 March 2026. The parties agree that these updated and amended documents address the relevant jurisdictional prerequisites and matters for consideration under cl 5.21. Of particular relevance to the parties’ agreement on flood planning matters, is that the boat shed must not be used for habitable purposes (as a dwelling or for the permanent, temporary or short-term accommodation of any person). This agreed position has been incorporated into Annexure A. On the basis of the preceding, I am satisfied that the matters listed in cl 5.21(2) of LEP 2012 have been comprehensively addressed in the amended Flood Impact Assessment Report, Flood Emergency Evacuation Response Plan and by the amended demolition plan, and that the matters for consideration in cl 5.21(3) have also been addressed in these documents.

17. Pursuant to cl 6.1 ‘Acid Sulfate Soils’ and the Acid Sulfate Soils Map, the site is classified as Class 4 and Class 5, with the rear of the site (where the boat shed is located) being mapped as Class 4. There are no works below 2 metres from the natural ground surface. I am therefore satisfied that the proposed development does not impact on potential Acid Sulfate Soils (cl 6.1(2) of LEP 2012).

18. Pursuant to cl 6.4 ‘Terrestrial Biodiversity’ the site is mapped as containing ‘significant vegetation’ and ‘connectivity between significant vegetation’ on the Terrestrial Biodiversity Map referred to in the clause. As there is no proposed tree or vegetation removal as part of the DA, I accept the agreement of the parties that there is no adverse impact to the ecological value of the land and cl 6.4 of LEP 2012 is satisfied.

19. Pursuant to cl 6.7 ‘Essential Services’, I am satisfied that the development is adequately connected to services and does not place an unfavourable demand onto these services. There is an existing on-site wastewater system, and the Wastewater Report accompanying the DA concludes that this system is suitable to service the boat shed, subject to an additional effluent area being added. The Conditions at Annexure A require connection to the on-site sewerage management system to receive written clearance from Hawkesbury City Council. Based on the preceding, and pursuant to cl 6.7 of LEP 2012, I am satisfied that the services listed that are essential for the development are available.

20. Hawkesbury Development Control Plan 2023 (DCP 2023) and Hawkesbury Development Control Plan 2002 (DCP 2002) applies to the site. The DCP 2023 revokes Part C of the DCP 2002 for Car Parking and Access, Effluent Disposal, Heritage Conservation and Appendix E – Civil Works Specification (Part 1 Design Specification). The SEE accompanying the DA provides an assessment of the suitability of the proposed development against the relevant provisions of both DCP 2023 and DCP 2002, and in particular addresses the suitability of the proposal against DCP 2002 Part D – Specific Development, Chapter 8 – Farm Buildings and Outbuildings. With this and the agreed position of the parties, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

21. 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)).

22. In making orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

23. The Respondent Hawkesbury City Council, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Development Application No DA0149/2025 by way of the following amended plans and other documents:

| Document Title | Reference | Prepared By | Date | | Flood Emergency Response and Evacuation Plan | 240347 – Rev 3 | Barker Ryan Stewart | 23/03/2026 | | Addendum to Flood Emergency/Evacuation Management Plan for 20 Manns Road, Wilberforce | | Orion | 18/02/2026 | | Flood Impact Assessment Report | Rev 004 | Orion | 25/02/2026 | | Statement of Environmental Effects | No.5 -Final 04 | Urban City Planning | 19/03/2026 | | DEMOLTION (sic) PLAN – 20 MANNS ROAD, WILBERFORCE | REV B | Mckinlay Morgan & Associates | 19/03/2026 |

Orders

7. The Court orders that:

8. The appeal is upheld.

9. Development Application No DA0149/25 for demolition works and use of an existing structure as a boat shed on land known as 20 Manns Road, Wilberforce (Lot 4 DP39350) is determined by the grant of consent subject to conditions in Annexure A.

C Swan

Acting Commissioner of the Court

Annexure A (301 KB, pdf)

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