Australia, June 5 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application DA/463/2022. The development application seeks consent for the consolidation of two existing lots and simultaneous re-division into two new lots, change of use of two existing dwellings to a dual occupancy (detached) and the construction of a new dwelling house. The development is proposed at 44 and 46 Hillside Drive, Glenning Valley (Lot 191 DP 733469 and Lot 12 DP 1201979).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 September 2024. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent's contentions, however the conciliation was ultimately terminated and the matter listed for hearing.

3. The Court arranged a further conciliation conference between the parties, which was held on 22 April 2024 and at which I presided. Prior to the conciliation, the parties had without prejudice discussions which resulted in amendments to the proposed development, in particular to the proposed access to the subdivision. At the conciliation conference, Council confirmed that the development application, as amended, resolved Council's legislative and merit concerns with the development. As a result, the parties have reached agreement. That agreement is for the grant of the application, as amended, subject to conditions.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that:

1) As the development application was lodged after 1 March 2022, Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) applies. The development application was lodged by the Applicant with the consent of the owners of the land.

2) The development application was notified between 6 May and 3 June 2022. One submission was received. That submission raised concerns with the potential for increased bushfire threat, the extent of vegetation clearing and the potential for an increase in dwelling numbers. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3) As required by s 27 of the EPA Regulation 2021 the development application is accompanied by a valid BASIX certificate prepared by Matt Thitchener which outlines measures proposed in the development to meet relevant energy and water efficiency targets. The embodied energy report forms part of the online BASIX tool and is covered by the BASIX Certificate. The parties agree, and I accept, that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified.

4) Subdivision 1 'Electricity transmission or distribution networks' of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the development application. The parties agree, and I accept, that the new electricity cable connection to the new dwelling can be carried out as exempt development pursuant to s 2.46(1)(c)(ii) of SEPP TI. Consent is not granted to these works: Butler Street Community Network Inc v Northern Regional Planning Panel [2017] NSWLEC 51.

5) Pursuant to s 2.143 'Telecommunications facility' of SEPP TI the telecommunications cables proposed in the new access driveway are permitted with development consent. Consent is to be granted to these works in the agreed orders.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968f550a895d4fd7c3d932f)

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