Hanna v The Hills Shire Council

[2025] NSWLEC 1095

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hanna v The Hills Shire Council [2025] NSWLEC 1095

Hearing dates:

Conciliation conference on 14 February 2025

Date of orders:

21 February 2025

Decision date:

21 February 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 357/2024/HA, as amended, for the demolition of existing structures, tree removal, consolidation of lots and subdivision of the consolidated lot, and construction of a residential flat building in 2 buildings containing 68 units with ancillary landscaping, drainage and associated works on land legally described as Lot 101 and Lot 102 in Deposited Plan 617912, and Lot 110 and Lot 113 in Deposited Plan 250610, and known as 119-121 Showground Road and 11-13 Sexton Avenue, Castle Hill, NSW, 2154, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.11

Land and Environment Court Act 1979, s 34

Roads Act 1993, s 138

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6

State Environmental Planning Policy (Housing) 2021, s 147; Sch 9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.99, 2.100, 2.119, 2.120

The Hills Local Environmental Plan 2019, cll 2.6, 4.3, 4.6, 9.1, 9.5

Cases Cited:

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

Andrew Hanna (Applicant)
The Hills Shire Council (First Respondent)
Sydney Metro (Second Respondent)

Representation:

Counsel:
C Zhang (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)
D Webster (Solicitor) (Second Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Matthews Folbigg Pty Ltd (Respondent)
Bick & Steele (Second Respondent)

File Number(s):

2024/42584

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of ss 8.7(1) and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 357/2024/HA for the demolition of existing structures, tree removal, consolidation of lots and subdivision of the consolidated lot, and construction of a residential flat building in 2 buildings containing 68 units with ancillary landscaping, drainage and associated works (the proposal), on land legally described as Lot 101 and Lot 102 in Deposited Plan 617912, and Lot 110 and Lot 113 in Deposited Plan 250610, and known as 119-121 Showground Road and 11-13 Sexton Avenue, Castle Hill (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 14 February 2025. 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 application

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, as follows:

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plan
1	Reference: 230009-DP_DRAFT B and Deposited Plan Administration Sheet	Plan of Subdivision and Road Dedication of Lots 110 & 113 in DP 250610, & Lots 101 & Lot 102 in DP 617912	Huy Duc Xuan Thai	15 August 2024

Pre-conditions to the grant of consent

6. Pursuant to s 2.99(3) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport), concurrence is required from Sydney Metro as the application proposes penetration of the ground within a rail corridor to a depth of at least 2 metres below ground level for the purposes of the basement. The application was referred to Sydney Metro in accordance with s 2.99(3) of SEPP Transport on 22 September 2023. Sydney Metro issued a request for additional information (RFI) to the applicant on 13 October 2023. The matters raised in the RFI, under s 2.99(4), have been raised in the Sydney Metro Statement of Facts and Contentions (Sydney Metro SOFAC). Sydney Metro is satisfied that the issues raised in the Sydney Metro SOFAC have been resolved by the amended application and remain resolved through the subsequent amended application. Sydney Metro is satisfied to grant concurrence to the application.

7. Section 2.100 of SEPP Transport applies to the proposal, as amended, as the site is in a rail corridor and the proposal is for residential accommodation. Pursuant to s 2.100(3), the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the nominated LAeq levels are not exceeded. The application is accompanied by an Acoustic Assessment, which confirms the development will not exceed the nominated LAeq levels.

8. Section 2.119 of SEPP Transport applies to the proposal, as amended, as the site has a frontage to Showground Road, a classified road. Pursuant to cl 2.119(2), the consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied of the matters in this subsection. The development is proposed to be accessed off Sexton Avenue. The safety, efficiency and ongoing operation of Showground Road will not be adversely affected by the development. The development will not emit unacceptable smoke or dust. The application is accompanied by a Traffic and Parking Assessment Report which concludes that the projected increase in traffic generation is minimal and will not have any unacceptable traffic implications. The Acoustic Assessment includes measures to ameliorate potential traffic noise or vehicle emissions arising from Showground Road.

9. Similarly, s 2.120 of SEPP Transport applies to the proposal, as amended, as the site is adjacent to a classified road and proposes residential accommodation. Pursuant to cl 2.120(3), the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the nominated LAeq levels are not exceeded. The Acoustic Assessment includes measures to ensure that the nominated LAeq levels are not exceeded.

10. The application was referred to Transport for New South Wales (TfNSW) on 11 September 2023, and TfNSW provided concurrence to the application under s 138 of the Roads Act 1993 for the proposed removal of redundant driveways on Showground Road, subject to conditions, on 4 October 2023. These conditions have been included at Condition 6 and Attachment 2 of the conditions at Annexure A.

11. The application was referred to Sydney Water and Endeavour Energy. On 4 October 2023, Sydney Water issued correspondence confirming that it has no objections to the application and proposed conditions of consent. On 20 June 2023, Endeavour Energy issued a Connection Offer to the site. Appropriate conditions have been included at Condition 5 and Attachment 1 of the conditions at Annexure A.

12. On 11 September 2023, the application was referred to the NSW Police Force in accordance with the requirements of “Safer by Design Guidelines” prepared by the NSW Police Force in conjunction with the Department of Planning (DEP) and the Protocol between Council and Castle Hill Police. On 13 September 2023, the NSW Police Force issued correspondence advising that it does not have any major concerns in relation to the application, however provided some security measures to be implemented. These security measures have been included at Condition 8 of the conditions at Annexure A.

13. Section 147 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) provides that 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 the design quality principles and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. The proposal, as amended, has been designed by a registered architect and is subject of a design verification statement which sets out the assessment against the relevant principles and criteria demonstrating that due regard to Sch 9 of the SEPP Housing and the ADG has been given.

14. The application is accompanied by a Preliminary Site Investigation prepared by EI Australia and dated 17 April 2023. The site has continuously been used for residential purposes and is located in an established residential area. Based on historical records, there is no suggestion that the site would have been contaminated. There are no immediate site conditions which would require remediation of the site, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The recommendations of the Preliminary Site Investigation have been included in the conditions under Conditions 60, 81 and 82.

15. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the proposal as the site is located within the Hawkesbury-Nepean Catchment. The matters in s 6.6 have been addressed in the stormwater concept design for the proposal. The matters for consideration have been addressed in the stormwater response to the Council SOFAC. In summary, the water quality and water quantity targets of the flow generated from the proposed development have been addressed and there will not be an adverse impact on water flow in a natural waterbody. The stormwater generated from the site is restricted by an onsite detention tank and the water quality is assured by the incorporation of different water sensitive urban design elements such as rainwater tank, Oceanguard baskets and stormfilters. I accept the Council’s submission that the proposed development has been designed in accordance with the requirements in this s 6.6. In relation to ss 6.6(1)(e) and 6.6(1)(g), the application is accompanied by a Hydrogeological Report. The development proposes a drained basement. The report includes an assessment of the water quality effects from long-term dewatering and includes dewatering management recommendations to ensure that the dewatering system complies with relevant water quality criteria. The recommendations from this report have been incorporated in the conditions, where appropriate, to ensure that the quality and quantity of groundwater and the water table is protected.

16. The site is zoned R4 High Density Residential pursuant to The Hills Local Environmental Plan 2019 (LEP 2019) and the proposal is permissible with consent. Subdivision of land is permissible with consent under cl 2.6 of LEP 2019. The objectives of the R4 zone, to which regard must be had, are:

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

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

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

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

17. I am satisfied that the proposal is consistent with the R4 zone objectives because the application proposes a high density residential development in an accessible location that provides for the housing needs of the community.

18. The proposal complies with the floor space ratio development standard of 1.9:1.

19. The site has an area of 3,621m² which complies with the minimum lot size for a residential flat building with a height of 11m or more in the R4 zone under cl 9.1 of LEP 2019.

20. I am satisfied that the proposal achieves a high standard of architectural design, materials and detailing appropriate to the building type and location, pursuant to cl 9.5 of LEP 2019, because the proposal, as amended, achieves each of the relevant matters listed under cl 9.5(4) of LEP 2019. On 26 July 2023, the pre application lodgement documents were reviewed by the Council’s Design Review Panel pursuant to cl 9.5(5)(a) of LEP 2019. I accept the Council’s submission that the comments by the Design Review Panel have been considered in the Council’s Amended Statement of Facts and Contentions, where appropriate, and that the Council is satisfied that the contentions raised have been resolved by the amendment of the application and conditions of consent.

Contravention of the height of buildings development standard

21. The height of buildings development standard for the site is 27m pursuant to cl 4.3 of LEP 2019. The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2019, are:

(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.

22. The proposal, as amended, is generally complaint with the building height control, save for minor exceedances for the lift overruns, which are a maximum of 1.2m at the lift overrun of Block B.

23. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by The Planning Hub.

24. Clause 4.6(3) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant’s written request to contravene the height of building development standard

25. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

26. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

27. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

28. The applicant’s written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the elements which exceed the standard do not result in any visual impacts, do not generate any adverse amenity impacts and the overall form of the proposal is consistent with the desired future character of the R4 zone.

29. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

30. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as a justified response to providing access to the communal area on the roof of Block B. The written request details how the elements that exceed the standard do not result in any amenity impacts on the public domain or surrounding development. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Conclusion

31. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 5 February 2025 and I am satisfied on the basis 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

32. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 357/2024/HA, as amended, for the demolition of existing structures, tree removal, consolidation of lots and subdivision of the consolidated lot, and construction of a residential flat building in 2 buildings containing 68 units with ancillary landscaping, drainage and associated works on land legally described as Lot 101 and Lot 102 in Deposited Plan 617912, and Lot 110 and Lot 113 in Deposited Plan 250610, and known as 119-121 Showground Road and 11-13 Sexton Avenue, Castle Hill, NSW, 2154, is determined by the grant of development consent subject to the conditions at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

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Amendments

11 March 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the Slip Rule), Annexure A is updated as amended.

Decision last updated: 11 March 2025