Javian Developments Pty Ltd v The Hills Shire Council

Case •

[2019] NSWLEC 1321

•

09 July 2019

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Javian Developments Pty Ltd v The Hills Shire Council [2019] NSWLEC 1321
Hearing dates: Conciliation conference on 5 July 2019
Date of orders: 09 July 2019
Decision date: 09 July 2019
Jurisdiction:Class 1
Before: Walsh C
Decision:

See orders at [9] below

Catchwords: DEVELOPMENT APPLICATION – 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 No 55 – Remediation of Land
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Texts Cited: NSW Office of Heritage and Environment, Guidelines for Consultants Reporting on Contaminated Sites
Category:Principal judgment
Parties: Javian Developments Pty Ltd (Applicant)
The Hills Shire Council (Respondent)
Representation: Solicitors:
V Conomos, Conomos Legal (Applicant)
J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s): 2018/154579
Publication restriction: No

Judgment

  1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against The Hills Shire Council's deemed refusal of development application 1184/2018/ZE (‘DA’).

  2. Pursuant to the parties' s34 Agreement, the Applicant seeks leave to rely on amended plans and material. Under the DA as amended, the Applicant seeks consent for the demolition of existing structures and small lot housing development, and subdivision creating 42 residential lots, with construction of 28 semi-detached dwelling and 14 dwelling houses including new road and associated road works and landscaping works. The site comprises the following parcels:

  • 27 Hynds Road, Box Hill (Lot 85 DP 11104)

  • 25 Hynds Road, Box Hill (Lot 85A DP 11104)

  • 29 Hynds Road, Box Hill (Lot 86 DP 10157)

  • 25 Mason Road, Box Hill (Lot 70 DP 11104).

Conciliation and agreement between the parties

  1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 5 July 2019. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

  2. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

  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.

  4. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, I note the following:

  • The development application was made with the written consent of landowners.

  • The development is permissible within Zone R3 Medium Density Residential zone pursuant to the provisions Appendix 11 The Hills Growth Centre Precincts Plan (“the Precinct Plan”) of State Environmental Planning Policy (Sydney Region Growth Centres) 2006.

  • The development does not contravene any development standard in the Precinct Plan or any other applicable environmental planning instrument.

  • Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The subject site is suitable for the purpose of the proposed development, having regard to the findings of the following reports prepared in accordance with the “Contaminated Sites, Guidelines for Consultants Reporting on Contaminated Sites”, prepared by the Office of Environment and Heritage (2011):

○ Preliminary Site Investigation prepared by Benviron Group dated November 2017, Revision 0;

○ Report on Stage 2 Contamination Assessment prepared by ideal geotech dated November 2018.

  • The infrastructure referred to in cl 6.1 of the Precinct Plan is available or adequate arrangements have been made to make the infrastructure available when required.

  • The development application was accompanied by BASIX Certificates in respect of the proposed development.

  1. I have relevantly affirmed the advice of the parties with respect to the above and 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. 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.

  2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application under s 4.15(1) of the EPA Act.

  3. The Court orders:

  1. The Applicant is granted leave to rely on the following amended plans:

DWG NO.

DESCRIPTION:

PREPARED BY

REV

DATE

Plan of Subdivision

Huy Duc Xuan Thai

E

05/11/2018

0

Cover Page

Baini Design

C

20/02/2019

00

Cover Page

Baini Design

C

20/02/2019

01

Overall Site Plan

Baini Design

C

20/02/2019

02

Site Plan 1

Baini Design

C

20/02/2019

03

Site Plan 2

Baini Design

C

20/02/2019

04

Site Analysis Plan

Baini Design

C

20/02/2019

05

Landscape Calculation Plan

Baini Design

C

20/02/2019

06

Demolition Plan

Baini Design

C

20/02/2019

07

Concept Subdivision Plan

Baini Design

C

20/02/2019

08

Staged Construction Plan

Baini Design

C

20/02/2019

09

Streetscape Elevation

Baini Design

C

20/02/2019

10

Overall First Floor Plan

Baini Design

C

20/02/2019

11

Lot 1 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

12

Lot 1 – Elevations, Sections

Baini Design

C

20/02/2019

13

Lot 2 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

14

Lot 2 – Elevations, Sections

Baini Design

C

20/02/2019

15

Lot 3 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

16

Lot 3 – Elevations, Sections

Baini Design

C

20/02/2019

17

Lot 4 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

18

Lot 4 – Elevations, Sections

Baini Design

C

20/02/2019

19

Lot 5 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

20

Lot 5 – Elevations, Sections

Baini Design

C

20/02/2019

21

Lots 6 & 7 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

22

Lots 6 & 7 – Elevations, Sections

Baini Design

C

20/02/2919

23

Lots 8 & 9 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

24

Lots 8 & 9 – Elevations, Sections

Baini Design

C

20/02/2019

25

Lot 10 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

26

Lot 10 – Elevations, Sections

Baini Design

C

20/02/2019

27

Lots 11 & 12 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

28

Lots 11 & 12 – Elevations, Sections

Baini Design

C

20/02/2019

29

Lots 13 & 14 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

30

Lots 13 & 14 – Elevations, Sections

Baini Design

C

20/02/2019

31

Lots 15 & 16 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

32

Lots 15 & 16 – Elevations, Sections

Baini Design

C

20/02/2019

33

Lot 17 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

34

Lot 17 – Elevations, Sections

Baini Design

C

20/02/2019

35

Lots 18 & 19 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

36

Lots 18 & 19 – Elevations, Sections

Baini Design

C

20/02/2019

37

Lots 20 & 21 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

38

Lots 20 & 21 – Elevations, Sections

Baini Design

C

20/02/2019

39

Lot 22 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

40

Lot 22 – Elevations, Sections

Baini Design

C

20/02/2019

41

Lot 23 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

42

Lot 23 – Elevations, Sections

Baini Design

C

20/02/2019

43

Lot 24 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

44

Lot 24 – Elevations, Sections

Baini Design

C

20/02/2019

45

Lot 25 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

46

Lot 25 – Elevations, Sections

Baini Design

C

20/02/2019

47

Lot 26 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

48

Lot 26 – Elevations, Sections

Baini Design

C

20/02/2019

49

Lots 27 & 28 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

50

Lots 27 & 28 – Elevations, Sections

Baini Design

C

20/02/2019

51

Lots 29 & 30 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

52

Lots 29 & 30 – Elevations, Sections

Baini Design

C

20/02/2019

53

Lot 31 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

54

Lot 31 – Elevations, Sections

Baini Design

C

20/02/2019

55

Lots 32 & 33 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

56

Lots 32 & 33 – Elevations, Sections

Baini Design

C

20/02/2019

57

Lots 34 & 35 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

58

Lots 34 & 35 – Elevations, Sections

Baini Design

C

20/02/2019

59

Lots 36 & 37 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

60

Lots 36 & 37 – Elevations, Sections

Baini Design

C

20/02/2019

61

Lot 38 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

62

Lot 38 – Elevations, Sections

Baini Design

C

20/02/2019

63

Lots 39 & 40 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

64

Lots 39 & 40 – Elevations, Sections

Baini Design

C

20/02/2019

65

Lots 41 & 42 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View

Baini Design

C

20/02/2019

66

Lots 41 & 42 – Elevations, Sections

Baini Design

C

20/02/2019

67

Driveway Sections – Lots 1 to 17

Baini Design

C

20/02/2019

68

Driveway Sections – Lots 18 to 35

Baini Design

C

20/02/2019

69

Driveway Sections – Lots 36 to 42

Baini Design

C

20/02/2019

LP-00

Landscape Context Plan & Cover Sheet

JALA Designs

E

14/03/2019

LP-01

Detailed Landscape Plan 1 of 3

JALA Designs

E

14/03/2019

LP-02

Detailed Landscape Plan 2 of 3

JALA Designs

E

14/03/2019

LP-03

Detailed Landscape Plan 3 of 3

JALA Designs

E

14/03/2019

LP-04

Street Tree Plan – 1 of 2

JALA Designs

E

14/03/2019

LP-05

Street Tree Plan – 2 of 2

JALA Designs

E

14/03/2019

LP-06

Planting Schedule & Details

JALA Designs

E

14/03/2019

C00

General Notes, Locality Plan and Drawing Schedule

Australian Consulting Engineers

G

18/02/19

C00.1

Key Plan

Australian Consulting Engineers

F

18/02/19

C01

Civil Works Layout Plan Sheet 1 of 2

Australian Consulting Engineers

E

15/01/19

C01.1

Civil Works Layout Plan Sheet 2 of 2

Australian Consulting Engineers

G

18/02/19

C01.A

Civil Works Layout Plan Sheet 1 of 2 (Alternative)

Australian Consulting Engineers

C

15/01/19

C02

Hynds Road – Longitudinal Section

Australian Consulting Engineers

E

18/02/19

C03

Aurora Street – Longitudinal Section

Australian Consulting Engineers

E

18/02/19

C03.1

Nova Street – Longitudinal Section

Australian Consulting Engineers

D

18/02/19

C03.2

Zaniah Street – Longitudinal Section

Australian Consulting Engineers

C

10/12/18

C04

Hynds Road – Cross Sections

Australian Consulting Engineers

E

18/02/19

C05

Aurora Street – Cross Sections

Australian Consulting Engineers

E

10/12/18

C05.1

Nova Street – Cross Sections Sheet 1 of 4

Australian Consulting Engineers

D

10/12/18

C05.2

Nova Street – Cross Sections Sheet 2 of 4

Australian Consulting Engineers

D

10/12/18

C05.2A

Nova Street – Cross Sections Sheet 3 of 4

Australian Consulting Engineers

B

10/12/18

C05.2B

Nova Street – Cross Sections Sheet 4 of 4

Australian Consulting Engineers

B

10/12/18

C05.3

Zaniah Street – Cross Sections Sheet 1 of 4

Australian Consulting Engineers

D

10/12/18

C05.4

Zaniah Street – Cross Sections Sheet 2 of 4

Australian Consulting Engineers

D

10/12/18

C05.5

Zaniah Street – Cross Sections Sheet 3 of 4

Australian Consulting Engineers

B

10/12/18

C05.6

Zaniah Street – Cross Sections Sheet 4 of 4

Australian Consulting Engineers

B

10/12/18

C06

Typical Cross Sections Sheet 1 of 2

Australian Consulting Engineers

D

10/12/18

C06.1

Typical Cross Sections Sheet 2 of 2

Australian Consulting Engineers

D

18/02/19

C07

Construction Notes and Details

Australian Consulting Engineers

C

10/12/18

C08

Linemarking and Signage Plan

Australian Consulting Engineers

E

18/02/19

C09

Bulk Earthworks Plan

Australian Consulting Engineers

D

15/01/19

C00

General Notes, Locality Plan & Drawing Schedule

Australian Consulting Engineers

A

21/05/19

C01

Bulk Earthworks Plan Sheet 1 of 2

Australian Consulting Engineers

A

21/05/19

C02

Bulk Earthworks Plan Sheet 2 of 2

Australian Consulting Engineers

A

21/05/19

ACE171521.SW.DA – 000

Cover Sheet, Notes & Legend

Australian Consulting Engineers

H

18/03/19

ACE171521.SW.DA – 101

Stormwater Concept Plan Ground Level Sheet 1 of 2

Australian Consulting Engineers

M

22/05/19

ACE171521.SW.DA – 102

Stormwater Concept Plan Ground Level Sheet 2 of 2

Australian Consulting Engineers

M

22/05/19

ACE171521.SW.DA – 103

Stormwater Concept Plan Level 1

Australian Consulting Engineers

G

17/01/19

ACE171521.SW.DA – 104

OSD & WSUD Details and Calculation Sheet 1 of 4

Australian Consulting Engineers

F

18/03/19

ACE171521.SW.DA – 104.1

OSD & WSUD Details and Calculation Sheet 2 of 4

Australian Consulting Engineers

B

18/03/19

ACE171521.SW.DA - 104.2

OSD & WSUD Details and Calculation Sheet 3 of 4

Australian Consulting Engineers

B

18/03/19

ACE171521.SW.DA – 105

OSD & WSUD Details and Calculation Sheet 4 of 4

Australian Consulting Engineers

I

18/03/19

ACE171521.SW.DA – 106

Miscellaneous Details Sheet

Australian Consulting Engineers

F

18/03/19

ACE171521.SW.DA – 107

Drains Model Catchment Plan

Australian Consulting Engineers

K

18/03/19

ACE171521.SW.DA – 108

MUSIC Model Catchment Plan

Australian Consulting Engineers

E

18/03/19

ACE171521.SW.DA – 109

External Catchment Plan

Australian Consulting Engineers

E

18/03/19

ACE171521.SW.DA - 110

Drainage Lines Long Sections Sheet 1 of 2

Australian Consulting Engineers

A

18/03/19

ACE171521.SW.DA – 111

Drainage Lines Long Sections Sheet 2 of 2

Australian Consulting Engineers

A

18/03/19

  1. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,000.00 within 14 days of these orders.

  2. The appeal is upheld.

  3. Development Application No. 1184/2018/ZE for the demolition of existing structures and small lot housing development, and subdivision creating 42 residential lots, with construction of 28 semi-detached dwelling and 14 dwelling houses including new road and associated road works and landscaping works on the land at:

  1. 27 Hynds Road, Box Hill (Lot 85 DP 11104)

  2. 25 Hynds Road, Box Hill (Lot 85A DP 11104)

  3. 29 Hynds Road, Box Hill (Lot 86 DP 10157)

  4. 25 Mason Road, Box Hill (Lot 70 DP 11104)

is approved subject to the conditions of consent annexed hereto and marked “A”.

………………………….

P Walsh

Commissioner of the Court

Annexure A (1.54 MB)

Architectural Plans_Part1 (10.2 MB)

Architectural Plans_Part2 (10.4 MB)

Architectural Plans_Part3 (9.53 MB)

Architectural Plans_Part4 (3.43 MB)

Landscape Plans (4.53 MB)

**********

Decision last updated: 09 July 2019

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