Encoron Pty Ltd v The Hills Shire Council

[2020] NSWLEC 1143

Land and Environment Court

New South Wales

Medium Neutral Citation:	Encoron Pty Ltd v The Hills Shire Council [2020] NSWLEC 1143
Hearing dates:	Conciliation conference on 28 February and 13 March 2020
Date of orders:	27 March 2020
Decision date:	27 March 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) Leave is granted to the Applicant to rely on the amended plans listed in Condition 1 at Annexure A. (2) Development Application 481/2020/HC for the demolition of an existing dwelling and structures and construction of a centre-based child care facility at 210 Annangrove Road, Annangrove is approve subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – child care centre – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55— Remediation of Land The Hills Local Environmental Plan 2012
Texts Cited:	The Hills Development Control Plan 2012
Category:	Principal judgment
Parties:	Encoron Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: P Grossman (Litigant in Person) (Applicant) A Veness (Solicitor) (Respondent)   Solicitors: Coutts Solicitors and Conveyancers (Respondent)
File Number(s):	2019/392932
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 481/2020/HC by The Hills Shire Council (hereafter the Council) for the demolition of existing structures and construction of a centre-based child care facility on Lot 1 DP 218285, also known as 210 Annangrove Road, Annangrove (hereafter the site).

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to the parties request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), held on 28 February and 13 March 2020, starting on site and thereafter at Council and by telephone. Four resident objectors were heard at the conciliation, whom raised issues relating to traffic safety, site access, character and tree impact.

4. Following the conciliation conference, the applicant sought to amend the plans to the DA to be relied upon in the agreement. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and issues raised by the objectors (in a previous notification of the DA), have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 481/2020/HC with conditions.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 481/2020/HC, with conditions and plans to be relied upon described in Annexure A.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Child Care); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); and Hills Local Environmental Plan 2012 (HLEP). In addition, the Hills Development Control Plan 2012 (HDCP) is of consideration to grant consent to the DA.

7. In consideration of the requirements of the SEPP Child Care, the DA is supported by amended plans, conditions of consent and relevant supporting documents. The parties agree that the proposed development satisfies all the requirements for a 114 place child care centre, with a maximum of 18 staff based on the agreed child age ratio, and providing 37 car parking spaces. Specifically, the contentions that relate to room dimension and location are resolved to the parties’ satisfaction.

8. In compliance with the requirements of SEPP 55, the DA is supported by a site assessment, as described in the conditions of consent. The parties agree that the requirements of the SEPP 55 are satisfied for the proposed child care facility, and the relevant contentions that relate to soil testing are resolved.

9. The parties agree that the relevant provisions of the HLEP are addressed to their satisfaction by the supporting documents and amended plans relied on by the DA under appeal. The proposed development is located within the RU6 Transition Zone. The proposed development is permissible in the zone and the objectives of the zone, as specified in cl 2.3 of the HLEP, are satisfied.

10. The proposed development does not exceed any numeric requirements for development standards of the HLEP, and satisfies the objectives for the relative clauses. The proposed development has considered and has had regard to the existing development on the site and surrounding development, and is consistent with the character of the area.

11. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and conditions of consent, the contentions raised by Council and issues raised by objectors that relate to the controls as specified in the HDCP are resolved to the satisfaction of the parties.

12. The parties agree that the proposed development was publicly notified in accordance with the HDCP. During the notification period for the DA under appeal, a number (7) of submissions in objection were received by Council. These submissions were considered by the parties, prior to reaching the agreement and are resolved to the parties’ satisfaction.

13. The amended plans that relate to the proposed development have been considered in the context of the site. Based on the amended plans and supporting documents to the amended DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties.

14. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 481/2020/HC should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

15. 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.

16. The Court orders:

1. Leave is granted to the Applicant to rely on the amended plans listed in Condition 1 at Annexure A.

2. Development Application 481/2020/HC for the demolition of an existing dwelling and structures and construction of a centre-based child care facility at 210 Annangrove Road, Annangrove is approve subject to the conditions in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (643 KB)

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