Background
Mary Aviani applied to Hornsby Shire Council for development consent (DA/157/2025) to subdivide a single lot at 311–313 Galston Road, Galston, NSW into two Torrens title lots and to remove twenty-eight trees. The site — Lot B in DP 370897 — is zoned RU4 Primary Production Small Lots under the Hornsby Local Environmental Plan 2013. The application proposed one lot of approximately 1.89 hectares (to contain a dwelling house already approved under a separate consent) and one vacant lot of 2.0 hectares. No physical construction works were proposed as part of the DA.
The Council refused the DA on 7 May 2025. Among the issues was that one of the proposed lots (at 1.89 ha) fell marginally below the 2-hectare minimum lot size prescribed by the LEP, requiring a clause 4.6 variation request. The site also sat within a flood planning area, the Hawkesbury-Nepean Catchment, and was subject to bushfire safety authority requirements under the Rural Fires Act 1997 (NSW). Aviani filed a Class 1 appeal in the Land and Environment Court on 17 October 2025.
During the appeal, Aviani amended the DA to address the Council’s concerns. Amendments included repositioning the proposed building footprint and driveway, relocating the effluent reuse area, updating the vegetation management plan and biodiversity assessment report, commissioning new flood and overland flow analysis, and revising the clause 4.6 justification. Two public submissions had been received during the original notification period, both in support of the proposal.
The Court’s Holding
Acting Commissioner Kullen presided over section 34 conciliation conferences held on 19 March 2026 and 28 April 2026. The parties reached a section 34 agreement on 29 May 2026. Satisfied that the parties’ agreed decision was one the Court could have made in the proper exercise of its functions, the Commissioner was required under s 34(3) of the Land and Environment Court Act 1979 (NSW) to dispose of the proceedings accordingly — without conducting an independent merit assessment of the original disputed issues.
The Commissioner upheld the appeal and granted development consent to the amended DA subject to conditions. Key jurisdictional prerequisites were confirmed as satisfied: community participation requirements had been met; owner’s consent was on file; the NSW Rural Fire Service had issued General Terms of Approval; and the clause 4.6 variation for the 1.89 ha lot (94.5% of the minimum, thus above the 90% floor in cl 4.6(6)(b)) was accepted as well-founded. The Commissioner found compliance with the strict 2-hectare minimum unreasonable or unnecessary in the circumstances, as the amended proposal achieved the objectives of the development standard and was consistent with the character of the Galston locality.
Consent was granted subject to a deferred commencement condition requiring submission and Council approval of an overland flow assessment report within 36 months before the consent can operate. The applicant was also ordered to pay $8,000 in costs thrown away by the Council as a result of the DA amendment, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).
Key Takeaways
- A clause 4.6 variation to minimum lot size is available where the non-compliant lot is above 90% of the standard and the proposal meets the underlying objectives of the development standard — here, a 1.89 ha lot (94.5% of the 2 ha minimum) satisfied this threshold.
- Under s 34(3) of the Land and Environment Court Act 1979, once the parties reach a conciliation agreement and the Commissioner is satisfied the decision is within the Court’s proper functions, the Court must give effect to that agreement without conducting a fresh merit review.
- Where a DA is amended during appeal proceedings, the applicant bears the costs thrown away by the respondent as a result of that amendment (here fixed by agreement at $8,000 under s 8.15(3) of the EPA Act).
- A deferred commencement condition can be used to manage outstanding flood and drainage concerns while still granting consent, provided the condition is capable of being satisfied.
Why It Matters
This decision illustrates the utility of the Land and Environment Court’s conciliation process as a practical pathway to resolve subdivision disputes, particularly where a DA can be amended to address planning concerns after refusal. It confirms that minor, site-specific departures from minimum lot size standards — where the lot remains above 90% of the minimum and the objectives of the standard are met — can be approved via the clause 4.6 exception mechanism without setting a broad precedent.
The costs order under s 8.15(3) serves as a reminder to applicants that amending a DA mid-appeal carries a financial consequence: wasted costs incurred by the council in assessing the original application may be recovered, even where the appeal ultimately succeeds. Practitioners advising on rural subdivision in the Hornsby LGA should note the intersection of flood planning requirements, biodiversity catchment controls, and bushfire authority obligations that applied on these RU4-zoned lands.