Boyded Industries Pty Ltd v The Hills Shire Council

[2022] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boyded Industries Pty Ltd v The Hills Shire Council [2022] NSWLEC 1297

Hearing dates:

Conciliation conference on 24 February 2022, 22 and 31 March 2022, 13 and 26 April 2022, 13, 23, 27 and 31 May 2022

Date of orders:

14 June 2022

Decision date:

14 June 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 923/2021/HA for the construction of a hotel with basement and at grade car parking at 1 Packard Avenue, Castle Hill, subject to the conditions of consent in Annexure ‘A’.

(3) The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPEAL – hotel - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17,8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 55 and 97

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index BASIX) 2004

State Environmental Planning Policy (Industry and Employment) 2021, s 3.11

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.118, 2.121, Sch 3,

The Hills Local Environmental Plan 2019 cll 4.3, 4.4, 5.10, 5.21, 7.1, 7.5, 9.2

Category:

Principal judgment

Parties:

Boyded Industries Pty Ltd ACN 000092464 (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/334635

Publication restriction:

No

Judgment

1. COMMISSIONER: The nature of proceedings: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal to grant consent to development application No. 923/2021/HA seeking development consent for the construction of a hotel (pub) with basement and at grade car parking (the Proposed Development) at 1 Packard Avenue Castle Hill legally described as Lot 52 in DP 1060302 (the Site).

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 has been held on 24 February 2022, 22 and 31 March 2022, 13 and 26 April 2022, 13, 23, 27 and 31 May 2022. I presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. The parties filed an Agreement pursuant to s 34 of the LEC Act on 31 May 2022 seeking orders from the Court including the following:

“Development consent is granted to Development Application No. 923/2021/HA for the construction of a hotel with basement and at grade car parking at 1 Packard Avenue, Castle Hill, subject to the conditions of consent in Annexure ‘A’.”

4. The Annexure A to the s 34 Agreement describes the development differently as “Construction of a pub with basement and associated landscaping and site works”. The parties have since clarified in writing on 8 June 2022 that the correct description of the development for the grant of consent is in accordance with the Annexure A to the s 34 Agreement and I make the order accordingly using that description of the development.

5. 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.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be various provisions of Environmental Planning Instruments detailed below. The parties explained how the jurisdictional prerequisites have been satisfied in a joint jurisdictional statement which I summarise below.

7. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.

8. The Site is currently used as a vehicle sales or hire premises which has operated continuously since 1976. The part of the Site accommodating the proposed pub is occupied by hardstand parking areas and undeveloped landscaped setback areas. There is no indication that the relevant part of the Site may have been subject to potentially contaminating activities during this period.

9. Notwithstanding, adopting a cautionary approach the Geotechnical Investigation prepared by JK Geotechnics dated 20 August 2020 and filed with the subject Class 1 Application notes that excavated material will be required to be tested and given a waste classification before disposal to an appropriate facility (see: Page 13 and Conditions 10 and 60).

10. Accordingly, the Respondent and the Court are satisfied of the matters set out in clause 4.6 of the SEPP Resilience and Hazards.

11. The proposed development is not a BASIX affected building pursuant to the State Environmental Planning Policy (Building Sustainability Index BASIX) 2004. The Site is located on classified roads, being Windsor Road and Victoria Avenue. Pursuant to s 2.118 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure):

1. Vehicular access to the Site is via Packard Avenue. There is no access from Windsor Road, and the existing access and driveway off Victoria Avenue is proposed to be removed;

2. The Proposed Development will not adversely affect the safety, efficiency, and ongoing operation of the classified roads as no change is proposed to the existing vehicular access off Packard Avenue, the proposed development will not emit excessive smoke or dust and the nature, volume or frequency of vehicles using the classified road to gain access to the Site is not excessive, and the parties rely on the Transport Assessment Report prepared by Ason Group dated 1 June 2021 and filed with the subject Class 1 Application; and

3. The Proposed Development is not a type which is sensitive to traffic noise or vehicle emissions.

12. As a traffic generating development listed in Sch 3 to the SEPP Transport and Infrastructure, the parties advise the Court that the Proposed Development has been referred to RMS in accordance with s 2.121 of the SEPP Transport and Infrastructure.

13. Pursuant to s 3.11 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment), a consent authority must not grant consent to an application to display an advertisement unless the advertisement is consistent with the objectives of Chapter 3 of the SEPP Industry and Employment, has been assessed in accordance with Sch 3, is acceptable in terms of its impacts, and satisfies any other relevant requirements of Chapter 3.

14. As part of the Proposed Development, it is proposed to relocate 3 existing totem signs associated with the existing motor showroom use. The signs are proposed to be relocated on the Victoria Avenue frontage (to the south) and Packard Avenue frontage (to the east).

15. The signage for the proposed pub will be the subject of a separate application.

16. The existing signs to be relocated are part of and therefore consistent with the character of the area and the streetscape. Their proposed new locations simply relate to the proposed new layout of the Site. Accordingly, no adverse impacts arise from the Proposed Development, and it is considered to be consistent with the aims and objectives of the SEPP Industry and Employment and satisfactory in the context of the criteria in Sch 3.

17. The Respondent has considered the proposed relocation of the existing signs and is satisfied that they consistent with cl 3.11 of the SEPP Industry and Employment and will not adversely cause or create detrimental impact to the vehicles travelling along adjacent roads.

18. There are a number of relevant provisions of The Hills Local Environmental Plan 2019 (THLEP).

19. Development for the purpose of a pub is permitted with consent in the B6 Enterprise Corridor zone in the Land Use Table of THLEP.

20. The Site is subject to a maximum height of buildings control of 27m pursuant to cl 4.3 of THLEP. The Development Application complies with this control as evidenced in the following drawings:

1. Elevations - North & East, Drawing No. DA1-3000 (Rev 08) dated 12 April 22 and

2. Elevations - South & West, Drawing No. DA1-3001 (Rev 08) dated 12 April 22)

21. The Site is subject to a maximum floor space ratio (FSR) control of 2.3:1 pursuant to cl 4.4 of THLEP. The Development Application complies with this control as evidenced in the Gross Floor Area Calculations, Drawing No. DA1-8001 (Rev 05) dated 09 March 22.

22. The Site is located within the vicinity of a heritage item, namely Windsor Road. The Respondent has considered the effect of the proposed development on the heritage significance of the heritage item pursuant to subcls 5.10(4) and (5) of THLEP and is satisfied that the proposal does not adversely affect the heritage item. The location of the proposed pub is separated from the Windsor Road frontage, by approximately 50m. Accordingly, the proposal is not visually prominent from Windsor Road as it is well down slope from that road and has a height of less than one storey when viewed from that vantage point as evidenced at pages 31 and 32 of the Statement of Environmental Effects dated December 2020 filed with the Class 1 Application.

23. The Site is not identified as being within a flood planning area. Accordingly, cl 5.21 of THLEP is not enlivened.

24. The Site is not identified as being within an acid sulfate soil area. Accordingly, cl 7.1 of THLEP is not enlivened.

25. Earthworks are proposed to accommodate the proposed building with excavation at the basement and part of the ground level. The earthworks have been designed to minimise detrimental impacts on existing drainage or soil stability and will facilitate the proposed development on the Site. Amended stormwater plans for the whole Site in reliance on the existing On Site Detention system have been provided, assessed and considered acceptable, and the parties rely on the Final Amended Stormwater Plans prepared by Evolved Engineering dated 21 April 2022. Accordingly, the Respondent is satisfied of the matters listed in cl 7.2 of THLEP.

26. The Site is identified as the Showground Station Precinct in the Sydney Metro Northwest Map Sheet CL3_016. Pursuant to cl 9.5 of THLEP, the Applicant’s Statement of Environmental Effects prepared by Design Collaborative and filed with the subject Class 1 Application at page 32 provides a detailed assessment of the design excellence considerations set out at subcl (4). There have been no significant design changes to the Proposed Development throughout the course of the s.34 conference discussions, rather the key amendments relate to the pub’s siting and the landscape treatment to Packard Ave and Victoria Road.

27. The Respondent is satisfied that the proposal exhibits design excellence for the purposes of Pt 9 of THLEP.

28. The parties have agreed on conditions of consent including Condition 25 ‘Modification of earlier development consents’. This condition of consent requires the modification of all previous development consents that apply to the Site, pursuant to the mechanism provided for in cl 97(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Specifically, the applicant must submit a ‘notice of modification’ to that effect to the Respondent prior to the issue of a Construction Certificate. The purpose of this requirement is to ensure that there is one consolidated development consent which applies to the whole of the Site, and which does not leave room for any inconsistency with any earlier development consent(s) applying to the Site (e.g. in relation to parking numbers/operation hours/management etc).

29. The power to impose such a condition is found in s 4.17(1)(b) of the EPA Act, which enables a condition of development consent to be imposed if:

it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates

30. Section 4.17(5) of the EPA Act then provides as follows:

If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations

31. The relevant regulation which in turn applies pursuant to s.4.17(5) of the EPA Act is cl 97 of the EPA Regulation. This regulation simply requires a ‘notice of modification’ to be provided to the Respondent and specifies what must be included in the notice. Importantly, cl 97(2) of the EPA Regulation provides as follows:

(2) A duly signed and delivered notice of modification or surrender of a development consent or existing use right referred to in subclause (1)—

(a) takes effect when it is received by the consent authority, and

(b) operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.

32. As such, condition 25 of the conditions of consent will facilitate and require the modification of the earlier development consents applicable to the Site, to ensure that they are made entirely consistent with the subject development consent, which is essentially a consolidation. This process is expressly empowered by s 4.17(1)(b) of the EPA Act and with cl 97 of the EPA Regulation, as detailed above.

33. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment above.

34. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations

35. The Court notes that:

1. The Hills Shire Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No. 923/2021/HA to rely on the documents in the table below.

Applicant’s Amended DA

TAB	DOCUMENT	DATE
AMENDED PLANS & REPORTS
1.	Further Amended Architectural Plans (up to Rev 19), including: • Title Sheet & Drawing List, Drawing No. DA1-0000 (Rev 20) dated 13 April 22 • General Notes & Abbreviations, Drawing No. DA1-0010 (Rev 02) dated 09 March 22 • Site Plan - Existing & Demolition, Drawing No. DA1-0400 (Rev 12) dated 12 April 22 • Site Plan – Earthworks DA1-0401, Drawing No. (Rev 05) dated 12 April 22 • Site Analysis Plan – Proposed, Drawing No. DA1-0500 (Rev 09) dated 12 April 22 • Site Plan – Proposed DA1-0501, Drawing No. (Rev 19) dated 13 April 22 • Site Plan - Proposed Car Parking Designation - Weekday Daytime, Drawing No. DA1-0510 (Rev 04) dated 12 April 22 • Site Plan - Proposed Car Parking Designation - Saturday Daytime, Drawing No. DA1-0511 (Rev 04) dated 12 April 22 • Site Plan - Proposed Car Parking Designation - Week Nights, Saturday Night & Sunday, Drawing No. DA1-0512 (Rev 04) dated 12 April 22 • Basement Plan – Proposed, Drawing No. DA1-1000 (Rev 17) dated 13 April 22 • Ground Floor Plan 01 – Proposed, Drawing No. DA1-1010 (Rev 19) dated 13 April 22 • Ground Floor Plan 02 – Proposed, Drawing No. DA1-1011 (Rev 08) dated 13 April 22 • Roof Plan – Proposed, Drawing No. DA1-1020 (Rev 09) dated 13 April 22 • Elevations - North & East, Drawing No. DA1-3000 (Rev 08) 12 April 22 • Elevations - South & West, Drawing No. DA1-3001 (Rev 08) 12 April 22 • Sections - 01 & 02, Drawing No. DA1-4000 (Rev 07) dated 13 April 22 • Sections - 03 & 04, Drawing No. DA1-4001 (Rev 06) 09 March 22 • Sections - Car Park, Drawing No. DA1-4002 (Rev 04) dated • 09 March 22 • Detail Sections 01 & 02, Drawing No. DA1-4003 (Rev 1) dated 09 March 22 • Signage - Existing & Proposed, Drawing No. DA1-7500 (Rev 03) dated 27 May 21 • GFA Calculations, Drawing No. DA1-8001 (Rev 05) dated 09 March 22 • Contributions Plan No.19 - Existing & Proposed, Drawing No. DA1-8010 (Rev 03) dated 09 March 22 • Shadow Diagrams - Winter 21st June 9am - Existing & Proposed, Drawing No. DA1-9000 (Rev 03) dated 09 March 22 • Shadow Diagrams - Winter 21st June 12pm - Existing & Proposed, Drawing No. DA1-9001 (Rev 03) dated 09 March 22 • Shadow Diagrams - Winter 21st June 3pm - Existing & Proposed, Drawing No. DA1-9002 (Rev 02) dated 09 March 22 • Shadow Diagrams - Summer 22nd December 9am - Existing & Proposed, Drawing No. DA1-9003 (Rev 02) dated 09 March 22 • Shadow Diagrams - Summer 22nd December 12pm - Existing & Proposed, Drawing No. DA1-9004 (Rev 02) dated 09 March 22 • Shadow Diagrams - Summer 22nd December 3pm - Existing & Proposed, Drawing No. DA1-9005 (Rev 02) dated 09 March 22 • Materials Palette, Drawing No. DA1-9010 (Rev 02) dated 11 September 20 • Driveway and Ramp Profiles, Drawing No. DA1-9020 (Rev 02) dated 09 March 22 • Kitchen - Detail Plan, Drawing No. DA1-9030 (Rev 02) dated 09 March 22 • Kitchen - Specifications, Drawing No. DA1-9031 (Rev 02) dated 09 March 22	13 April 2022
2.	Schedule of Amendments (1 June 21 vs 13 Apr 22)	10 May 2022
3.	Further Amended Landscape Plans (Rev G), including: • DA Cover Page, Drawing No. LP01-D7020; • Ground Landscape Plan 01, Drawing No. LP02-D7020; • Ground Landscape Plan 02, Drawing No. LP03-D7020; • Existing Showroom Landscape Plan 01, Drawing No. LP04-D7020; • Existing Showroom Landscape Plan 02, Drawing No. LP05-D7020; • Landscape Details, Drawing No. LP06-D7020	29 March 2022
4.	Addendum Transport Assessment Report, prepared by Ason Group	12 May 2022
5.	Operational Traffic Management Plan, prepared by Ason Group	27 May 2022
6.	Updated Plan of Management, prepared by Design Collaborative	April 2022
7.	Updated CPTED Assessment, prepared by Design Collaborative	20 April 2022
8.	Updated Survey Plans, prepared by Stuart De Nett Land Surveyors, including: • Plan Showing Sheet Layout (Sheet Plan); • Plan Showing Additional Detail (Sheet 1); • Plan Showing Additional Detail (Sheet 2);	28 March 2022
9.	Further Revised Arborist Report, prepared by Rain Tree Consulting	13 April 2022
10.	Updated Acoustic Assessment (Issue 8), prepared by Renzo Tonin & Associates	9 May 2022
11.	Final amended stormwater plans, including: • Site Plan Permeable Area Modification, Drawing No. P22763-H-000-001 (Issue 1) • Hydraulic Services Basement Drainage Layout, Drawing No. P22763-H-B01-201 (Issue 1) • Hydraulic Services Ground Floor Drainage Layout, Drawing No. P22763-H-GF-201 (Issue 1) • Hydraulic Services Basement Inground Drainage Layout, Drawing No. P22763-H-B01-202 (Issue 1) • Hydraulic Services Ground Floor North Drainage Layout, Drawing No. P22763-H-GF-202 (Issue 1) • Hydraulic Services Roof Plan Drainage Layout, Drawing No. P22763-H-R00-201 (Issue 1)	21 April 2022
ADDITIONAL INFORMATION
12.	Letter from Heartland Motors re changing trade conditions	7 February 2022
13.	Letter from Pitcher Partners re changing trade conditions	7 February 2022
14.	Letter from Heartland Motors re servicing	10 March 2022

2. The amended application as described in the Table above was lodged on the NSW Planning Portal on 30 May 2022.

3. The Applicant subsequently filed the amended application with the Court on 31 May 2022.

Orders

36. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 923/2021/HA for the construction of a pub with basement and associated landscaping and site works at 1 Packard Avenue, Castle Hill, subject to the conditions of consent in Annexure ‘A’.

3. The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

……………………….

E Espinosa

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 14 June 2022