Alan Development Pty Ltd v The Hills Shire Council

[2018] NSWLEC 1630

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alan Development Pty Ltd v The Hills Shire Council [2018] NSWLEC 1630
Hearing dates:	Conciliation conference on 8 and 28 November 2018
Date of orders:	05 December 2018
Decision date:	05 December 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [15] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Alan Development Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Solicitors: P Jayne, Sparke Helmore (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/68703
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by The Hills Shire Council (Council) of development application DA 1230/2018/HA, which is seeking consent for land subdivision and construction of a residential flat building and associated works on the land at 17-19 Alan Street, Box Hill.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

3. My power to dispose of these proceedings in accordance with the parties decision under s 34(3) is dependent on the satisfaction of relevant jurisdictional pre-requisites. I have considered the advice of the parties and concur that there are four such pre-requisites in this matter. I reference these individually below:

State Environmental Planning Policy No 55—Remediation of Land.

4. Clause 7(1) of SEPP 55 provides as follows:

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

5. I have considered whether the land is contaminated. I have had regard to the Detailed Site Investigation Report and Salinity Assessment (STS GeoEnvironmental, May 2018), and its finding that site contamination levels are below the adopted assessment criteria for this land use. In consideration of the question of contamination I am satisfied the land is suitable for the purpose for which development is to be carried out.

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

6. Clause 30(2) of SEPP 65 provides as follows:

(2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to:

(a) the design quality principles, and

(b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

7. I have had regard to the Design Verification Statement (Idraft Architects, September 2018) which provides a consideration of the SEPP 65 design quality principles. I have also had regard to the response statements to relevant objectives and design criteria contained in the Apartment Design Guide which accompanied the development application (CMPS, undated). I further note the changes to the plans which have occurred since the original lodgement of the application. I am of the opinion that adequate regard has been had to the SEPP 65 design quality principles and the relevant objectives specified in the Apartment Design Guide.

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

8. Appendix 11 of the Growth Centres SEPP is concerned with the Hills Growth Centre Precinct, within which this site is located. Clause 6.1 of Appendix 11 is concerned with public utility infrastructure, and provides, relevantly, that:

6.1 Public utility infrastructure

(1) Development consent must not be granted for development on land to which this Precinct Plan applies unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

…

(3) In this clause, public utility infrastructure includes infrastructure for any of the following:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage.

9. I have reviewed the advice from Sydney Water dated 13 March 2018 in regard to the supply of water and the disposal and management of sewage. I have also reviewed the advice of Endeavour Energy dated 21 November 2018 in regard to the supply of electricity. I am satisfied that infrastructure essential to the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

State Environmental Planning Policy (Infrastructure) 2007

10. Clause 101(2) of SEPP Infrastructure provides that:

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

11. The development is on land that has frontage to a classified road. Access to the development would be provided by the side street rather than the classified road and in that sense am satisfied in regard to cl 101(2)(a) of the SEPP. I have had regard to the traffic report prepared for the development (Stanbury Traffic Planning, September 2018) and advice received from Roads and Maritime Services (23 March 2018) which raised no objections to the proposal with the proviso that certain conditions be applied which I believe have been satisfactorily applied, and am satisfied in regard to the matters listed at cl 101(2)(b) of the SEPP, having regard to the proposed conditions. In regard to cl 9(c) I have had regard to the acoustic report prepared for the proposal (Rodney Stevens Acoustics, 15 May 2018) and the condition imposed which would mitigate against noise from the classified road (Condition 87). I am also satisfied in regard to cl 101(2)(c) of SEPP Infrastructure.

Conclusion

12. As the presiding Commissioner, I am satisfied that the decision of the parties was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act requires me to “dispose of the proceedings in accordance with the decision”.

13. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

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

15. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend Development Application No. 1230/2018/HA and to rely upon the amended plans and documents referenced at Condition 1 in Annexure A.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 1230/2018/HA seeking consent for the demolition of existing structures, subdivision into 2 lots, construction of a 6 storey residential flat building containing 54 units (5 x 1 bedroom, 37 x 2 bedroom and 12 x 3 bedroom) over 2 levels of basement parking containing 73 car parking spaces (61 x residential, 11 x visitor and 1 x car wash bay) and associated landscaping and tree removal works and construction of roads on the land at 17-19 Alan Street, Box Hill subject to the conditions of consent at Annexure “A”.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (C)

Decision last updated: 06 December 2018