Bridgewell and SLD Castle Hill Pty Ltd v The Hills Shire Council

[2024] NSWLEC 1348

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bridgewell and SLD Castle Hill Pty Ltd v The Hills Shire Council [2024] NSWLEC 1348

Hearing dates:

Conciliation conference on 19 June 2024

Date of orders:

24 June 2024

Decision date:

24 June 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs ‘thrown away’ as agreed or assessed in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment.

(2) The written request pursuant to clause 4.6 of The Hills Local Environmental Plan 2019 (THLEP) to grant consent to the contravention of the building height development standard set out in clause 4.3 of THLEP, prepared by Barker Ryan Stewart, dated June 2024, is upheld.

(3) The appeal is upheld.

(4) Development Application No 1139/2023/HA for lot consolidation, demolition of an existing dwelling (No 38 Kathleen Avenue) and part of an existing heritage listed residential structure (No 40 Kathleen Avenue), relocation of the heritage dwelling and construction of a multi dwelling housing development comprising 29 dwellings with basement parking, landscaping and associated works at 38 & 40 Kathleen Avenue, Castle Hill 2154 is determined by the grant of development consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – conciliation conference – agreement between 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, ss 38, 61

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 6.2, ss 6.6, 6.7, 6.65

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

State Environmental Planning Policy Amendment (Water Catchments) 2022

The Hills Local Environmental Plan 2019, cll 4.3, 4.6, 5.10, 7.2, 9.4, 9.5, Sch 5

Texts Cited:

The Hills Development Control Plan 2012

Upper Parramatta River Catchment, Trust On-site Stormwater Detention Handbook, June 2004

Standards Australia, Australian Standard AS2601-2001 Demolition of Structures, September 2001

Category:

Principal judgment

Parties:

Bridgewell and SLD Castle Hill Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Smith (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/144331

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Two allotments fronting Showground Road in Castle Hill are proposed to be consolidated for development. The two allotments form a large site that, once consolidated, addresses Kathleen Avenue to the north east of the site.

2. To this end, development application No 1139/2023/HA (as amended), lodged 20 January 2023, sought consent for partial demolition of existing structures, construction of a part 2-, part 3-storey multi dwelling housing development comprising 30 dwellings (including alterations and additions and the relocation of a heritage listed dwelling house with the site) over basement car parking for 73 vehicles at 38 and 40 Kathleen Avenue, Castle Hill (the DA).

3. The DA was notified by The Hills Shire Council (the Respondent) between 31 January 2023 - 21 February 2023 during which time one public submission was received.

4. On 5 May 2023, the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction.

5. The matter was initially listed before me for hearing on 18-20 June 2024. However, at the commencement of the proceedings, the parties advised the Court that as a result of conferral between relevant experts, the issues in contention in this matter had been resolved.

6. On the application of the parties, the matter was re-allocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act).

7. At the conciliation conference, the parties reached in-principle 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.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was finally submitted with the Court on 19 June 2024.

9. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

10. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [60], as follows.

11. The development application is made with the consent of the owner of the site, and the parties advise the Court that the proposed demolition of existing structures is in accordance with AS 2601-2001 Demolition of Structures pursuant to s 61 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).

12. The site is located within the R3 Medium Density Residential zone according to The Hills Local Environmental Plan 2019 (THLEP), in which multi dwelling housing is permitted with consent, where consistent with the objectives of the R3 zone, which are:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage medium density residential development in locations that are close to population centres and public transport routes.

13. Clause 4.3 of THLEP provides a development standard of 10m for the height of buildings. The proposed development exceeds the height standard by 500mm, and the Applicant relies on a written request authored by Barker Ryan Stewart dated June 2024 (the written request), prepared in accordance with cl 4.6 of THLEP.

14. The written request depicts the areas of exceedance in Figure 6, re-produced below:

15. The written request asserts compliance with the height standard is unreasonable or unnecessary in the circumstances of this case, because the proposal is consistent with the objectives of the height standard at cl 4.3.

16. The objectives are twofold:

(a)  to ensure the height of buildings is compatible with that of adjoining development and the overall streetscape,

(b)  to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas.

17. In respect of objective (a), the written request notes the exceedance is minor and set back from side boundaries and from Showground Road, and is limited to four terraces in the north of the site, and three terraces in the middle of the site, largely as a result of sloping topography and in an area of the Showground Station Precinct in which development of a height and density as that proposed is envisaged.

18. In respect of objective (b), the written request asserts the exceedance is localised within a small portion of the proposed development and so do not result in visual impact, loss of privacy or significant overshadowing of either the neighbouring development, or that development that is internal to the site. A detailed assessment of visual and acoustic privacy appears at pp 14-19 of the written request.

19. This assessment may be summarised in the following terms:

1. The height of the development, inclusive of exceedance, will not encroach on the vegetated backdrop of the site, and remains consistent with medium density development approved in the Showground Station Precinct.

2. There are no views identified in the area that are subject to obstruction or loss as a result of the exceedance, and window openings to adjoining properties are so limited as to avoid overlooking of a kind that would result in loss of privacy.

3. Shadow diagrams impact the adjoining property at No 36 Kathleen Avenue that is identified as development for the purpose of a boarding house. The written request provides an extract of the approved development, stating that excavation for the development has the effect of lowering the development by around 1m below the natural ground surface, with the result being the development is within the height standard. The overshadowing of the development on No 36 Kathleen Avenue is exacerbated by this decision that is not significantly different to that cast by a complying development. To the extent an impact arises from the proposed development, the written request cites the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 applicable at the time, to assert the solar access requirements of the time are achieved to one of the two communal rooms, while the impact on the ground floor communal room is foreseeable given the lowering of the room as a result of the excavation.

20. Next, the written request sets out three environmental planning grounds it relies on to justify the contravening of the height standard, summarised as follows:

1. Firstly, while the development consists of three distinct buildings that somewhat step down the site from Showground Road to Kathleen Avenue, the sloping topography falls in essentially two directions; resulting in exceedances localised to the eastern corner of the roof forms.

2. Secondly, the extent and degree of the exceedance results in negligible impact while enhancing the design and amenity of the built environment in terms of scenic values and views available from the public domain and neighbouring properties, overshadowing and visual privacy. Such impacts are minimised by setbacks to the proposal either complying or exceeding requirements, generous building separation, relocation and restoration of the heritage item, and where the area of exceedance is limited to 0.8% of the site area.

3. Thirdly, and relatedly, as the height exceedance measures a maximum of 500mm, or 50cm, in an area where a 10m height standard applies.

21. Finally, the written request also asserts that the proposed development is in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R3 zone at [12] in which the development is proposed to be carried out (cl 4.6(4)(a)(ii) of THLEP). This is because the proposed development will aid the provision of high quality, medium density housing for the community, is compatible with the architectural form envisaged in the locality by the relevant controls, including multi storey residential development envisaged in close proximity to the site and provides housing of a kind that represents variety in the R3 zone.

22. I note here that the Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of THLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R3 Medium Density Residential zone.

23. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of THLEP.

24. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height standard under cl 4.3 is justified.

25. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R3 Medium Density Residential zone, for the reasons given in the request, summarised above.

26. In forming this opinion of satisfaction, I accept that the shadow diagrams prepared by Nordon Jago Architects demonstrate that building separation, and side setbacks to development on the subject site serve to minimise the impact of overshadowing on the ground floor communal room on the adjoining property at No 36 Kathleen Avenue that would otherwise result from a complying envelope in any event.

27. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of THLEP and I find no grounds on which the Court should not uphold the height request.

Other jurisdictional preconditions to the grant of consent

28. The site is identified in Sch 5 of THLEP as a local heritage item. The listing relates to an existing house located on the site identified as Item I69 with an accompanying inventory sheet stating the significance derives from “Rare surviving orchard on a subdivision”.

29. The DA is supported by a Heritage Impact Statement (HIS) prepared by Weir Philips dated November 2022 that outlines the historical development of the site, including use as an orchard, and categorises the historical phases of construction, alteration and addition to the interior and exterior of the timber cottage.

30. An Addendum to the HIS dated 19 February 2024 addresses amendments made to architectural plans as to the relocation of the timber cottage, that is agreed by the heritage experts to be an acceptable heritage response, and a positive impact as it will mean the cottage is visible from the public domain, and permits the planting of citrus and apricot trees in front of the cottage to associate the cottage with an orchard-like setting.

31. A relocation plan, prepared by Shreeji Consultant identifies a location at the Showground frontage that is temporary while excavation occurs on the site. Once complete, the timber cottage is to be located as depicted on the architectural plans, sections and elevations.

32. On this basis, I accept the effect of the proposed development on the heritage item, in terms set out by cl 5.10 of THLEP, is not detrimental to the heritage significance of the site.

33. On the basis of the following documents, I consider those matters at cl 7.2(3) of THLEP to be adequately addressed:

• Detailed Site Investigation Report, prepared by Foundation Earth Sciences dated March 2023;

• Dilapidation Inspection Report, prepared by Shreeji Consultant Structural Civil engineers dated 10 November 2022

• Stormwater drainage plans, that include Erosion and sediment control plans, prepared by Telford Civil (Stormwater Plans).

34. Clause 9.4 applies, at subcl (2), to development on land that has a site area of at least 3,600m², and that is within the Showground Station Precinct. Development consent must not be granted for development on such land unless a development control plan that provides for the matters specified in subcl (4) has been prepared for or applies to the land, or the development is of a minor nature and is consistent with the objectives of the zone in which the land is situated. Part D, Section 19 of The Hills Development Control Plan 2012 (THDCP) is a development control plan of a kind required by cl 9.4(3)(a) of THLEP.

35. Provisions in respect of design excellence that apply to the Showground Station Precinct are at cl 9.5 of THLEP. It is relevant to record here that the site is identified as being located within the Showground Station Precinct by virtue of the Dictionary of THLEP that defines the Showground Station Precinct as land identified as such on the Sydney Metro Northwest Map, on which the site is so designated.

36. The Applicant provides a design excellence statement that seeks to address the provisions at cl 9.5(4) of THLEP. Having had regard to those matters at cl 9.5(4)(a)-(d) of THLEP, I have formed an opinion that a high standard of architectural design, materials and detailing appropriate to an area in transition is achieved; and that the form, arrangement and external appearance of the development will improve the quality and amenity of the public domain because of the relocation and landscape treatment in the vicinity of the heritage item that will address Showground Road.

37. I do not understand there to be view corridors that are detrimentally impacted by the development, and for the reasons set out at [19(3)], I have considered the solar access controls relevant to the site.

38. On the basis of the diagram at [14], it is clear, in my view, that three storey multi dwelling development that is substantially within the height standard, and within an area in which such development is permitted with consent, and is identified in the Showground Station Structure Plan (Part D, Section 19 of THDCP), may be considered suitable development for the subject land, as are the proposed uses on the site, including the heritage fabric on the site that is to be retained, relocated and refurbished if not restored.

39. For the reasons set out at [20(2)], I am of the opinion that separation, setbacks, amenity and urban form to other development is appropriate and for the reasons at [19] the bulk and massing of the proposal, modulated by pathways and setbacks, is acceptable, and I accept that the street frontage heights are consistent with the street frontage heights anticipated in the Showground Station Precinct.

40. I also accept that the development proposes a form suited to natural ventilation and that shadow diagrams demonstrate adequate solar access to internal areas, and to private open space. Environmentally sustainable development is achieved by appropriate orientation of private open space, certain elementary efficiencies in fittings and fixtures, natural ventilation and materials and finishes that minimise glare and heat impacts in summer.

41. Pedestrian access is provided to both Showground Road and Kathleen Avenue, while vehicular access is limited, appropriately in my view, to Kathleen Avenue. While no upgrade whatsoever is proposed to the public domain, the setbacks and landscape planting proposed to Showground Road serve to enhance the area adjacent to the public domain, and provide an appropriate interface at ground level with the public domain.

42. On the basis of the above, I consider the proposed development exhibits design excellence within the terms described at cl 9.5 of THLEP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

43. Showground Road, to which the site has a frontage, is a classified road. As such, development consent is precluded under s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) unless, as is the case here, vehicular access to the land is provided by a road other than the classified road. Such access is provided from Kathleen Avenue, and not from Showground Road.

43. I am satisfied that the safety, efficiency and ongoing operation of Showground Road will not be adversely affected by the development, which presents a setback of 10m to this frontage, and to which an Acoustic Report prepared by Koikas Acoustics dated 14 February 2023 is directed.

44. An addendum Acoustic Report by the same author, dated 15 April 2024 has been prepared that provides for acoustic measures to the proposed townhouses fronting Showground Road to satisfy the provisions at ss 2.119 and 2.120 of the Transport SEPP, including that appropriate measures will be taken to ensure that the relevant LAeq levels at s 2.120(3) of Transport SEPP to the development, including those measures required for the heritage dwelling. Likewise, a letter prepared by Weir Philips dated 2 November 2023 opines that the noise attenuation proposed in the Addendum Acoustic Report will have a positive effect on the heritage item.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

46. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by an arboricultural impact assessment report prepared by Seasoned Tree Consulting dated 5 October 2023 (Arborist Report) assessing trees on the site, and on neighbouring sites to conclude that 21 trees are proposed for removal, and that 10 trees located immediately adjacent to the site are to be retained and protected during construction. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

47. As the development application was lodged after the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022, the savings and transitional provisions at s 6.65 of the Biodiversity SEPP do not apply. The effect of this is that Chs 7-12 are repealed.

48. The site is located within the Hawkesbury-Nepean Catchment. As such, Pt 6.2 of the Biodiversity SEPP applies.

49. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

50. On the basis of the detention and filtration of stormwater depicted in the Stormwater Plans cited at [33], I am satisfied that the proposal demonstrates conformity with s 6.6 of the Biodiversity SEPP by providing sediment control and water capture in the post-development scenario in a manner that achieves a beneficial effect on the water quality and water flow into the harbour.

51. This because, firstly, the Stormwater Plans (drawing 106) tabulate the reduction of pollutants, and depicts the filtration unit maintenance, storm filter cartridges, trash and debris traps, also depicted on drawing 105, and that is the subject of the terms of condition 30 of the agreed conditions of consent which incorporates targets from the Upper Parramatta River Catchment Trust (UPRCT) On-site detention Handbook. Secondly, because the volume of water detained on site exceeds that required by the UPRCT Handbook of 237.56m³, by providing 242.05m³ of detention.

52. Additionally, erosion and sediment control management measures have been proposed for demolition, excavation and construction on the site on drawing 107.

53. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion.

State Environmental Planning Policy (Resilience and Hazards) 2021

54. On the basis of the conclusion recorded in the Detailed Site Investigation cited at [33], I accept that the site is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

55. The application is accompanied by a BASIX certificate (Cert No 1352050M_03 dated 13 June 2024) prepared by Ecoplus Consultants Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and the EPA Regulation 2021.

56. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

57. 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.

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

59. The Court notes that:

1. the Respondent has approved, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No DA 1139/2023/HA in accordance with the following amended plans and documents (the Amended Application):

DOCUMENT

DATE

Amended Architectural Plans prepared by Nordon Jago Architects

• DA.001 Front Cover (Rev V) dated 18 June 2024

• DA.010 Site & Site Analysis Plan (Rev N) dated 18 June 2024

• DA.011 Existing Site (Rev J) dated 11 June 2024

• DA.099 Proposed Basement Plan (Rev W) dated 11 June 2024

• DA.100 Proposed Ground Floor Plan (Rev BB) dated 18 June 2024

• DA.101 Proposed First Floor Plan (Rev W) dated 11 June 2024

• DA.102 Proposed Second Floor Plan (Rev W) dated 11 June 2024

• DA.103 Proposed Roof Plan (Rev T) dated 11 June 2024

• DA.110 Proposed Heritage Building Modifications - Basement Plan (Rev F) dated 18 June 2024

• DA.111 Proposed Heritage Building Modifications - Ground Floor Plan (Rev G) dated 18 June 2024

• DA.112 Proposed Heritage Building Modifications - First Floor Plan (Rev F) dated 17 June 2024

• DA.113 Proposed Heritage Building Modifications - Roof Plan (Rev F) dated 17 June 2024

• DA.114 Proposed Heritage Building Modifications - North & South Elevations (Rev F) dated 17 June 2024

• DA.115 Proposed Heritage Building Modifications - West Elevation (Rev F) dated 17 June 2024

• DA.116 Proposed Heritage Building Modifications - East Elevation (Rev G) dated 18 June 2024

• DA.117 Proposed Heritage Building Modifications - Long Section (Rev F) dated 17 June 2024

• DA.118 Proposed Heritage Building Modifications – Short Section 1 (Rev A) dated 18 June 2024

• DA.119 Proposed Heritage Building Modifications – Short Section 2 (Rev A) dated 18 June 2024

• DA.120 Type D2 - Typical 3 Bed (Adaptable) (Rev B) dated 11 June 2024

• DA.121 Type A2 - Typical 3 Bed (Adaptable) (Rev B) dated 11 June 2024

• DA.200 Proposed Sections A - B & C (Rev Q) dated 11 June 2024

• DA.201 Proposed Sections D - E & F (Rev M) dated 11 June 2024

• DA.300 Proposed Elevations - Sheet 1 (Rev U) dated 11 June 2024

• DA.301 Proposed Elevations - Sheet 2 (Rev P) dated 17 June 2024

• DA.302 Proposed Elevations - Sheet 3 (Rev Q) dated 11 June 2024

• DA.303 Proposed Elevations - Sheet 4 (Rev C) dated 11 June 2024

• DA.350 Schedule of External Colours (Rev K) dated 11 June 2024

• DA.400 Proposed Shadow Diagrams - June 21 at 9am (Rev Q) dated 11 June 2024

• DA.401 Proposed Shadow Diagrams - June 21 at 12pm (Rev Q) dated 11 June 2024

• DA.402 Proposed Shadow Diagrams - June 21 at 3pm (Rev Q) dated 11 June 2024

• DA.404 Proposed Solar Analysis - June 21 at 9am (Rev B) dated 11 June 2024

• DA.405 Proposed Solar Analysis - June 21 at 10am (Rev A) dated 11 June 2024

• DA.406 Proposed Solar Analysis - June 21 at 11am (Rev B) dated 11 June 2024

• DA.407 Proposed Solar Analysis - June 21 at 12pm (Rev B) dated 11 June 2024

• DA.408 Proposed Solar Analysis - June 21 at 1pm (Rev B) dated 11 June 2024

• DA.409 Proposed Solar Analysis - June 21 at 2pm (Rev B) dated 11 June 2024

• DA.410 Proposed Solar Analysis - June 21 at 3pm (Rev B) dated 11 June 2024

• DA.411 Proposed Solar View - 9am (Rev C) dated 11 June 2024

• DA.412 Proposed Solar View - 10am (Rev C) dated 11 June 2024

• DA.413 Proposed Solar View - 11am (Rev C) dated 11 June 2024

• DA.414 Proposed Solar View - 12pm (Rev C) dated 11 June 2024

• DA.415 Proposed Solar View - 1pm (Rev C) dated 11 June 2024

• DA.416 Proposed Solar View - 2pm (Rev C) dated 11 June 2024

• DA.417 Proposed Solar View - 3pm (Rev C) dated 11 June 2024

• DA.450 Proposed Cut & Fill Plans (Rev B) dated 11 June 2024

• DA.451 Proposed Cut & Fill Sections & 3d (Rev B) dated 11 June 2024

• DA.500 Proposed Area Plans - Units (Rev S) dated 11 June 2024

• DA.502 Proposed Envelopes & Height Limit (Rev J) dated 11 June 2024

• DA.505 Proposed Area Plan - Landscaping (Rev E) dated 18 June 2024

• DA.506 Proposed Area Plan - Impervious (Rev D) dated 18 June 2024

Various dates

Amended Landscape Plans Prepared by Conzept Landscape Architects (Rev J-K)

• Sheet 01 - Hardscape Plan (Rev K), dated 18 June 2024

• Sheet 01a Fence Detail (Rev K), dated 18 June 2024

• Sheet 01b Fence Detail (Rev K), dated 18 June 2024

• Sheet 02 Landscape Plan-1 (Rev K), dated 18 June 2024

• Sheet 03 Landscape Plan-2 (Rev K), dated 18 June 2024

• Sheet 04 Landscape Plan-3 (Rev K), dated 18 June 2024

• Sheet 05 Planting Images (Rev K), dated 18 June 2024

• Sheet 06 Sections (Rev J), dated 12 June 2024

• Sheet 07 Elevations (Rev K), dated 18 June 2024

• Sheet 08 Detail + Specification (Rev J), dated 12 June 2024

• Sheet 09 Central Communal Space (Rev K), dated 18 June 2024

• Sheet 10 TH01 Courtyard (Rev J), dated 12 June 2024

• Sheet 11 TH16 Courtyard (Rev J), dated 12 June 2024

• Sheet 12 TH03 Courtyard (Rev J), dated 12 June 2024

• Sheet 13 TH23 Courtyard (Rev K), dated 18 June 2024

12, 18 June 2024

Amended Heritage Cottage Relocation Plan prepared by Shreeji Consultants (DRG NO.22011.01)

27 May 2024

Amended Stormwater Plans prepared by TelFord Civil (Rev G)

• 000 Cover Sheet Plan (Rev C) dated 22 December 2023

• 101 Stormwater Concept Plan Basement Level 1 Sheet 1 Of 2 (Rev F) dated 12 June 2024

• 102 Stormwater Concept Plan Basement Level 1 Sheet 2 Of 2 (Rev C) dated 22 December 2023

• 103 Stormwater Concept Plan Ground Level (Rev G) dated 12 June 2024

• 104 Stormwater Concept Plan Roof Level (Rev F) dated 12 June 2024

• 105.0 On-Site Detention Details and Calculations Sheet 1 Of 2 (Rev D) dated 17 January 2024

• 105.1 On-Site Detention Details and Calculations Sheet 2 Of 2 (Rev B) dated 22 December 2023

• 106 Catchment Plan and Music Results (Rev D) dated 12 June 2024

• 107 Sediment and Erosion Control Plan & Details (Rev B) dated 05 October 2023

• 108 Miscellaneous Details Sheet (Rev B) dated 05 October 2023

• 109 Drainage Longitudinal Section (Rev A) dated 22 December 2023

Various dates

Design Excellence Compliance Table prepared by Barker Ryan Stewart

June 2024

Amended Traffic Impact Assessment Report & Plans prepared by Genesis Traffic (Version 5)

12 June 2024

Amended Class 1 Application

13 June 2024

Updated Clause 4.6 Variation Request re Height prepared by Barker Ryan Stewart

18 June 2024

BASIX Certificate No. 1352050M_03

13 June 2024

2. The Court notes that the Applicant filed the Amended Application with the Court on 19 June 2024.

Orders

60. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment.

2. The written request pursuant to clause 4.6 of The Hills Local Environmental Plan 2019 (THLEP) to grant consent to the contravention of the building height development standard set out in clause 4.3 of THLEP, prepared by Barker Ryan Stewart, dated June 2024, is upheld.

3. The appeal is upheld.

4. Development Application No 1139/2023/HA for lot consolidation, demolition of an existing dwelling (No 38 Kathleen Avenue) and part of an existing heritage listed residential structure (No 40 Kathleen Avenue), relocation of the heritage dwelling and construction of a multi dwelling housing development comprising 29 dwellings with basement parking, landscaping and associated works at 38 & 40 Kathleen Avenue, Castle Hill 2154 is determined by the grant of development consent, subject to the conditions in Annexure A.

T Horton

Commissioner of the Court

Annexure A

**********

Decision last updated: 24 June 2024