Baghla v The Hills Shire Council

[2023] NSWLEC 1480

Land and Environment Court

New South Wales

Medium Neutral Citation:

Baghla v The Hills Shire Council [2023] NSWLEC 1480

Hearing dates:

Conciliation conference on 7 July 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 765/2023/HA for a double-sided illuminated pylon sign, at 31 Kenthurst Road, Dural (Lot 1 in DP 34815), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – double sided illuminated pylon sign – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Hills Local Environmental Plan 2019, cl 5.10

Category:

Principal judgment

Parties:

Yatinder Baghla (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
E Flemming (Solicitor)(Applicant)
T Ward (Solicitor)(Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Pikes & Verekers (Respondent)

File Number(s):

2023/54903

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 765/2023/HA for a double-sided illuminated pylon sign (the proposal), at 31 Kenthurst Road, Dural (the site), by The Hills Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 July 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended Plans

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A. The amended application included a Heritage Impact Statement prepared by Philip North of Weir Phillips and dated 3 July 2023. The amended application was filed with the Court on 1 August 2023.

Jurisdictional pre-conditions to the grant of consent

6. The site is zoned RU6 Transition pursuant to The Hills Local Environmental Plan 2019 (LEP 2019) and the proposal is permissible with consent. The objectives of the zone are:

• To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage innovative and sustainable tourist development, sustainable agriculture and the provision of farm produce directly to the public.

• To ensure that development does not have a detrimental impact on the rural and scenic character of the land.

7. The proposed pylon sign is an ancillary purpose to the existing centre-based childcare facility on the site.

8. The site is a local heritage item (Item 82, Sch 5 to LEP 2019). Pursuant to cl 5.10(4) of LEP 2019, I have considered the Heritage Impact Statement (HIS) filed with the amended application and I accept the conclusion of the HIS that the amended proposal will not detrimentally impact on the identified heritage significance of the item.

Conclusion

9. I am satisfied on the basis of all of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

10. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 765/2023/HA for a double-sided illuminated pylon sign, at 31 Kenthurst Road, Dural (Lot 1 in DP 34815), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

**********

Annexure A

Decision last updated: 24 August 2023