21 April 2022 - HLPP

Okay, well welcome everybody to the Hawkesbury Local Planning Panel meeting for today, being 21st of April 2022. This panel has been appointed by the Minister for Planning and Public Spaces and the Council to determine certain categories of development applications. My name is Louise Byrne and I'm the chairperson for today's panel. And the other panellists with me today are Mr John Brunton, Mr Ian Hunt and Mr Paul Rogers. Before I proceed any further, I would like to acknowledge the traditional custodians of the land, the Dharug people, at least where the Council chambers are, and their elders past and present. Now before I go any further, I'd just like everybody to identify themselves who is in this virtual room. So , Mr Hunt, can you identify yourself with your voice, because then people know.

Yes, good morning.

Thank you. Mr Rogers.

Yes, Paul Rogers, good morning.

Mr Brunton.

Good morning. My name is John Brunton. I'm an expert panel member.

Christy. Good morning. I'm Christy Evanus, Development Services Manager. And then we have Andrew.

Morning everyone, my name is Andrew Johnston. I'm a planner here at Hawkesbury City Council, and I prepared the report before the panel today.

And Mr. Bucket, I can see your photo there.

Yeah, I'm here, Lionel Bucket. I'm the owner of the property. And I'll just give David Jones is my plan. I'll give his apologies. He's stuck in Forbes. Okay,

Thank you for that, Mr. Bucket. And is Mr. Story here? Mr. Roderick Story? Your solicitor, is he present, Mr. Bucket? He

Was there, but his picture's gone.

Oh, okay. All right, we'll move on further. Now, just a couple of procedural matters. As a courtesy to others, please keep your microphones on muted at all times unless I call on you to speak. And this meeting is being audio visually recorded, and the audio recording will be via podcast on the council's website. Any part of this meeting that is held in a closed session will not be recorded. Now, importantly, under the terms of the Privacy and Personal Information Protection Act, personal information provided at the meeting will be recorded. The provision of any information that is recorded is voluntary, so any person who does not wish to be recorded should not address the panel. Now, for the benefit of those persons who will be addressing the panel, it's expected that you will refrain from making any insult, allegation or personal reflection against any person present or not at this meeting.

This request relates to both your address to the meeting and any answers given in response to questions from the panel. Under the panel's code of conduct. Panel members are required to disclose any pecuniary and/or non-pecuniary interest in relation to the matter. We only have one matter on today's agenda, of course, the matter on today's agenda, and each panelist has completed disclosure forms, which have been provided to the council. Now, for myself, Louise Byrne, I declare that I have no conflicts of interest in relation to today's agenda, and I ask each other panel members whether they have any conflicts of interest to declare. Mr. John Brunton.

I do not have any conflict of interest.

Mr. Ian Hunt. I

Do not have any conflict of interest.

Mr. Paul Rogers. There's

No conflicts of interest. Thank you.

Thank you. So, as I said, we have only one item on the agenda today. In respect of that, it's the DA in relation to Berambing. Now, the panel is familiar with the DA and with the land in particular, and have read the assessment report by the council officer prepared by the council officer that's in your meeting notes today, meeting papers . And also, the panel members have read any submissions that have come in since this matter was considered before and is fully apprised of all the material so far that's been provided to council and has done their own inquiries looking at the DA and what's- At issue today. Now, only persons who've registered to speak will be permitted to address the panel, and those making submissions have three minutes to speak, although I may permit extra time where it's appropriate to do so.

Now, at the end of your submission, Mr. Bucket, and I'm assuming Mr. Story is going to speak, is that correct? I can see you nodding, yes. At the end of your submission, you are to stay in the meeting, of course, for any questions that the panel may have of you. Then, for each item on the agenda, once you've addressed the panel, the panel may adjourn into closed session to deliberate. Understood? I think, Mr. Bucket, given that you were present on the last occasion, you do understand the sequence and the procedure But I'm just repeating this as a matter of formality , for Mr. Story's benefit as well. So then we will resume into public after a private session where the panel will deliberate on your application before it today.

The panel will then resume to the meeting to announce its decision to the public. Now, the determination of the panel will be confirmed in the official minutes, which will be available on the council's website most likely by next Thursday.

By next Thursday. Now, I'm now going to ask Mr Johnston to just briefly describe the DA that is before the panel today. So, you right for that, Mr Johnston?

Yes, Madam Chair. The application before the panel is identified as development application number DA0196/20. It's for the use of two cabins as part of a tourist facility. The cabins have been constructed and they're identified as the Enchanted Cave and the Treehouse. These two cabins are part of a wider tourist facility development that was originally approved, I think around 2003, that was approved by development application number MA1308/01. That original consent approved six cabins within five structures. This application is for two additional cabins. Because there have been changes in the Hawkesbury Local Environmental Plan and definitions, this particular application has been lodged and has argued that...

The land benefits and that these structures can be considered under the existing use right provisions of the Environmental Planning and Assessment Act. As it involves this legal question, Council did engage solicitors to review the submitted advice and documentation. That advice came back saying that the proposal is unable to be considered under the existing use right provisions, and accordingly, the report that I've prepared recommends the refusal of the application. I should say that this matter has been reported to the Horsby Local Planning Panel for determination as the owner of the land is a relative of a councillor.

Now, can I just ask you, as you've said, this was deferred from the last meeting to give the applicant some further time to put material or submissions to Council. What has occurred in that period? What documents or what steps have been taken, if any, if you could inform the panel by the applicant and/or his advisers since the last meeting?

Yeah, so the resolution of the last panel meeting was that it be deferred until this particular date. In terms of, there have been some discussions with myself and both the applicant and the owner, but in terms of what has been any additional material, I believe that Mr. Bucket has requested… has put in a GIPA request through Council. I don't believe he has received that information at this stage. In terms of additional correspondence between myself, the owner and the applicant, in response to the third point for the reasons of deferment, the resolution from the panel on the 17th of March, it was mentioned that the deferral was also to provide the applicant with the opportunity to consider a future course of action, given that the Eco Tourist Facility use is now permissible under the Hawkesbury Local Environmental Plan 2012 .

The applicant, Mr David Jones, he has subsequently prepared some documentation for a new application, so it hasn't been formally lodged. He sent it through to me via a Dropbox link on Saturday, just for Council to review if we had any particular comments or if it, you know, if it generally, if it was at a standard for lodgement . So that will be reviewed. In terms of anything additional, myself and the owner, you know, we had some conversations, but he did stress that he would like the matter to— that he did not wish to withdraw this current application.

So just that material hasn't been sent to us. It's not in the papers today, correct?

That's correct. It doesn't have particular status at this stage. No,

No, I'm not. I'm just, I'm not saying it should have been put before us. I'm just asking you. So it's of a technical nature to do with the possibility, with the probable, sorry, to do with possibly lodging a further DA, and it's at an early stage at the moment.

That's correct, Madam Chair.

Thank you. Now, do any of the panel members have any questions of Mr. Johnson? No. Okay. Is there anything further you want to say before I ask Mr. Buckett to speak, Johnson?

No, thank you.

Yes, well, Mr. Buckett, you did send to Council, which we have, the panel members have, a submission. Is there anything you want to say in respect of that submission and anything further you want to say today?

I'll let the submission speak for itself.

Yes.

I do want to say other things.

So just for the purpose of the record, the submission was an email sent to Council on the 14th of April 2022 and provided to all the panel members. Thank you, Mr. Buckett. Yes.

So I basically want to defer the use of, like this DA that's in, until ecotourism one that we've submitted. has been processed. And on the one that we have, I'd like to point out that procedural fairness isn't followed when this is relying on an undisclosed legal advice. And I'd like maybe a couple of corrections to my barrister's opinion. So the council's picked up there the date of 2006 in the legal

Advice. Can you just hold on for a minute because I'd like to turn up where that is in the papers so we can follow you. The opinion starts at page 27 of today's papers. Where are you referring to?

Yeah . I picked it up from the council's report on the second page, the fifth paragraph down.

The second page of? The

Report I've got is the report from the first planning panel meeting.

Oh, okay. Well, just refer to the paragraph numbers of the advice, I think, because they're all numbered. What paragraph number of the advice? I

Haven't looked it up in the advice. I've just taken the report as being accurate. Sorry

But the report reproduces your barrister's advice.

Yeah.

And within the— well, what page number are you referring to?

It's on the original council report. The page number is 64. Sorry, 64. It's the fifth paragraph down.

Hang on, I'll just find— this is last month. In

The current papers, Madam Chair. Yes, thank you very much, Mr Brunton. Page 35 in the current paper. Thank you. And it's paragraph 33.

Yes. Okay, thank you very much, Mr Brunton. Fire away, Mr Bucket.

Paragraph

33.

I would just like to say that should be amended to the Cabin Love Studios. First use was 16 April 2008, in the dream.

I'm still not following. I'm very sorry. Let me just.. . Does the sentence start, I'm instructed in accordance with the DO, the use of the site commenced in 2006?

That's it.

Is that what you want to correct? The use of the site as a tourist facility commenced in 2006, and as a...

Yeah, that's what I want to correct.

And what do you want it to read as?

The Cabin Love Studio commenced 16 April 2008.

16-4-08. So instead of it reading, instructed in accordance with the development consent, the use of the site as... the use of the site by the Cabin Love Studio

Commenced on 16th of April 2008.

Yes.

And a tourism business as permitted by.. . HLP 1989 has operated continuity on the site without incident of any kind, providing overnight and short-stay tourist accommodation. Is that the rest of that sentence?

Yeah. And I'd also like to add the cabin dream cabin started use on 29 January 2009.

Is that in this text somewhere, or you want to add that as a separate?

Add that as a separate.

Okay, so just say that again, the cabin.

Dream cabin. Sorry

The dream cabin

Commenced use 29 January 2009.

29/01/09. So that can be the following sentence, okay?

Yeah, that's just to correct those two dates.

Yeah.

Is everyone clear on that, where that's to be inserted? So this is paragraph 33 of the legal advice at page 35 of the current meeting papers, okay? Is there anything further?

I assume that.

Sorry, Mr. Buckett.

So I'll assume you're right on that paragraph, save the time. Relevant to, yeah. So, yeah, I obviously like the use the approved. If it's not to be approved, if the panel's not approving it, I'd like it to be deferred so that I can properly address it when I get the GIPA for it, so I can look at the information there and make an informed submission. I've waited for that GIPA since 8 March, and I haven't got any response except that they've got it and it's been paid for.

But you would have been— are you aware that councils are entitled to claim legal professional privilege over a legal advice, and so you may not get it under GIPA?

Yeah, but I also want that GIPA so I can see what else is in the file, not just the legal report. Right. It's a long time, the two years, and it's had a lot of ins and outs, and I don't get to see the background to it without access to that file.

Right. Okay.

So I think if the panel's not of a mind to approve the use part of the DA, then it'd be more efficient to defer it until the ecotourism DA, this process. And I'm told that that can be done relatively quickly, and that my planners worked on it for quite a few days, and we've put in what Andrew asked us to put in it,

And I think

The Dropbox has been shared. It's been uploaded to the planning portal. And my understanding, it's up to council to look at it and come back with a, you know, a price for it, and then I presume then it gets a DA number.

Yes. No, I think that sounds like that's a regular procedure, yes. Do any of the panel members have any questions of Mr. Buckett?

I don't want to explore this too far, but Mr. Buckett, your request to the council for information, it just relates to this current application, does it? It doesn't relate back to the original development and what was approved and what wasn't approved?

No, no, I have all that.

Okay.

Anyone else? Is there anything further? Mr. Johnson, you can add or can ask Mr. Buckett, or would assist the panel?

No, I don't. Obviously, there are some matters perhaps to discuss with, you know, with panel in relation to the dates that Mr. Buckett has put forward.

Right. Okay. All right. Now, Mr. Buckett, anything further you'd like to say?

If I just have a moment.

Yes, of course.

So I've made those points adequately, I think. It's the GIPA that I'd require, and pointing out the lack of... Fairness for the panel to rely on a , you know, a secret or a confidential legal report, so we can't, I can't be heard on what's in that if I can't see it. And perhaps those corrected dates might make a difference for the panel to be able to approve this. And if not, then that's my suggestion to save time and money is to proceed with the eco-tourism and not determine the used DA until that, because the two things probably run into alignment together,

Time-wise

And, you know, for the amount of money that these things cost, both to the community and to myself, that would be the most efficient thing, I think.

Understood. Yes. Well, we gave you another month, of course. We deferred the last meeting, as you're aware. One of the reasons

Was for procedural fairness.

Do you have— is Mr. Story going to address the panel as well? Yeah

I think so. I can see he's

Still— Is he here now?

I can see his phone's there. He probably needs to be told to come in. He's on the screen.

I can't see him myself.

I'll just call him.

Oh, good morning. Good morning, panel. Can you hear me? Unfortunately, I'm having great difficulty with my server, which has added to the stress of the morning. But it's — my application this morning is a simple one. It's simply a deferral to allow the applicant to have his ecotourism development application considered. I understand that was lodged on the 15th of April. So obviously, you haven't had an opportunity to—well, as I understand from what I've heard earlier , we haven't even got a number yet. So it would seem the logical thing is to allow that to be considered, and this whole application may, as a result of that, evaporate, or hopefully it may. In addition to that, there is a GIPA application, which I'm instructed was filed on the 18th of March this year, and the applicant, as Lionel Buckett has said, would like the opportunity to consider a number of the matters, or the information in the council's file.

And we would say that it's therefore, even though perhaps this meeting has to some extent been wasted, we would say that it hasn't, to the extent that

It informs all parties of where

The matter

Is

At the present. The application is on foot, can be considered, and it'll save, as Lionel Buckett has said, it'll save a lot of debate and concern and expense if the matter was simply deferred to another date, to allow, to say, a date after the ecotourism development application has been considered, to avoid the possibility of

Another application for deferral. So that would be our submission

That it simply be deferred at this stage to allow everyone to consider the fresh application.

Okay. Well, thank you, Mr. Storey. Has anyone got any questions of Mr. Storey? No, no questions. Okay. And Mr. Buckett, you

Madam Chair, maybe if they could just clarify what the ecotourist facility application would cover.

Yes, that's a good idea. Can you— are you able to do that, Mr. Buckett?

Yeah, it covers— well, Andrew wrote to us and told us what it should have in it. So it would cover the treehouse and the cave, and I think it— I personally think it should also cover the dream cabin because that's the refuge building. So the treehouse and the cave. Ecotourism, I presume you've probably all read the rules around ecotourism. It's a bit different from other things. So you have a refuge building. Yes. All the fire reports are done to cover everything, actually. So they cover all the existing cabins, and it revolves around the dream cabin. So the dream cabin, RFS want an upgrade. So within that, we've put in all the upgrades that they've asked for. We've gone beyond their request for upgrades. And, well, anything further, I thought, well, it could be discussed with Andrew to see. If that's suitable, or he wants to make further changes to it.

I don't

See that as a, you know, as a problem at all.

Okay. So that's very helpful. Thank you, Andrew, and thank you, Mr. Buckett. Anything further from anyone on the panel?

Can I just ask Mr. Buckett, another option that could have been considered was that you just withdraw this application to allow the ecotourism application to proceed. Did you actually consider that as an option?

I have, but there's been a bit of competition between me and executive level. So to do, look, I appreciate if you look at the overall situation and go, okay, the council would want to get rid of the use application because that would help its KPI. And I don't want to be disadvantaged because of that.

You know ,

I don't know if any of you have read the original pre-planning notes. So we went through quite a process to get to this stage and followed exactly everything that the council asked us to do. So it's been great expense, and then they, at the last minute, decided they'd get an opinion and change their original position. So, I don't trust that it won't end up being a disadvantage to me to withdraw it. So I do know I could simply withdraw it, but I am concerned on getting to the end because this is many years now.

Okay. Thank you, Mr. Bucket. Anything further from panel members, or Mr. Bucket, or Mr. Story?

No, look, I'd only be repeating my application. I just think if the fresh eco-tourism application is successful, then obviously it would be withdrawn. But I say that without instructions, of course, reserving his rights and so forth, that that's really the basis of the application for deferral. We would say that it's in everyone's interest just to allow the new application to be considered without repeating the self-expense. That's our position.

Thank you, Mr. Story. I mean, I think the real problem is that the current DA was lodged when the ecotourism was prohibited use, which only complicated it, which was something that was out of the control of council or any applicant's realm, wasn't it ? Because it was just an amendment. It was in the LEP. So that complicated the process. Significantly , now that it's permissible use for ecotourism, that's a much simpler path , isn't

It? That's right, that's right. But I suppose we'd be able to abandon our original application and then be faced with an unsuccessful

Fresh eco application

At least we retain the two limbs of our argument.

Yes. Face with the difficulty of

Council. Yeah, it does. I mean, we're really stuck with the problem with the changes in legislation, and everyone's sort of labouring under that, I suppose. But I think at the end of the day, another deferral would benefit everyone and save everyone a lot of time and grief .

Okay. All right. Well, I think we've— Can

I make another comment?

Yes, of course.

I find frustrating about this is the issue only arose because in the 2011 changeover from the old LEP to the new LEP, the council mistakenly advertised the tourism in the wrong column, in the without consent column, and then after being on exhibition, it just simply left it out for this zoning. So all of this actually comes from a mistake that could have been corrected a long time ago. Well,

The LEPs are made by the state government, though. They have to find their instruments. Under the Act, they don't, the final say on them. So, I mean, in terms of, this is all history, but in terms of the final wording of what was the legal document was really, is really up to the department, I would think. But anyway, little mistakes are often there, and that's the role of the department, or it's made law.

It's also for the council to, like, pick up the mistake and they can correct it. Oh ,

Well, let's not— We won't debate it further. It's a shame that that's ended up, it ended up that way. But, you know, in your favour , it's been now corrected as a permit to be made a permissible use, so that's a positive.

Yeah, that's a positive. That took a lot of lobbying and a lot of time to get there. But the one, not the eco one, just the simple tourist accommodation was the one that was mistakenly left out.

Oh, I wasn't aware of all that history.

And that's the one that brought us into that situation because the use was no longer there.

Thank you very much for that background. I think that we've finished with everything, unless anyone else has a further comment or question. I think that we've finished in the public session now. We will adjourn to consider your matter. So—

Madam Chair, if I may ask a question perhaps to the further town planner, what would be the anticipated timeframe in considering the eco application, considering they— Could be running in parallel. What's the time frame?

Yeah, look, I mean, I would like to deal with this matter as soon as possible. Obviously, there have been lots of complications with things, and council went into this, you know, trying to provide assistance because there were issues with permissibility. And so that, you know, Mr. Bucket mentioned things about pre-lodgement meetings. You know, we went into it. We tried to put forward an option for him to explore. You know, ultimately, based on that legal advice, that wasn't an appropriate way forward. So we recognise all of that. I would like to deal with it as soon as possible. As I've mentioned to Mr. Bucket and Mr. Jones, though, that it still has to go through the regular process. So this particular application being bushfire prone land would need to go to RFS for general terms and approval.

Given that they have issued those general terms of approval for this proposal, and it's been considered as an ecotourist facility for the purposes of bushfire, I would hope that those general terms of approval would be issued. I would like to deal with it as soon as the application has gone through notification and through that referral process. I would say that it would be several months, best case scenario. But what I can make a commitment about is trying my best to sort it out. Once RFS have come back with their okay, that's probably the biggest issue that Council doesn't have control over. I hope that answers the question.

Yes, Mr. Brunton, you've got your hand raised. Thank you, Andrew.

Mr. Johnson, continuing that point, just as this application had to come to the panel, the new application would have to go to the panel as well, wouldn't it?

That's correct, yes. Okay,

Thank you, Mr. Brunton. I think that we will adjourn now this public session, and IT people, anything further that I need to say right now? Hello?

No, that's fine.

Okay, adjourn now to private session. Thank you, Mr. Buckett. Thank you, Mr. Story, for your assistance.

Okay. So, excuse me one minute. Mr. Buckett, are you there? Mr. Buckett, did he come back in? Yes, there he is.

Oh, Mr. Buckett , can you turn your— you're now in, okay? We've made a decision, and I'll just read out the decision to you, okay? Can you turn your— Yeah, okay. Oh, you can hear me, yes, thank you very much. So, the panel has unanimously decided to defer determination of the current DA being DA number 0196/20, defer determination of the matter for a period of three months. It's been nominally stood over to the planning panel meeting on the 21st of July 2022, and for the reasons that we've— for the deferment, I'll read them out to you. One, the applicant has requested that the matter be deferred to give him an opportunity to submit a development application for an eco-tourist facility on the subject land that includes use of the building subject to DA 0196/20.

Reason two, the panel anticipates that Council will prepare a report for the panel on the status of any new development application for the subject land. Reason three, deferral of the development application ensures procedural fairness to the applicant. And the panel members voted unanimously on that decision. So, it's now over to you, Mr. Buckett, to take the proposed DA further. Okay, is there anything else you'd like to say? Thank you. Thank you very much, everyone, for attending for your time today, and I am now going to close the meeting unless the meeting minute secretary tells me there's something further I need to do that I haven't done. No, that's fine. No, you're fine. Thank you very much, everyone.

Okay. Bye-bye.