Leith Group Developments Pty Ltd v The Hills Shire Council

[2022] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leith Group Developments Pty Ltd v The Hills Shire Council [2022] NSWLEC 1402

Hearing dates:

Conciliation conference 25 July 2022

Date of orders:

28 July 2022

Decision date:

28 July 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs ‘thrown away’ in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment of the application as now documented at Condition 1 to Schedule 1 in Annexure A, as agreed or assessed.

(2) The appeal is upheld.

(3) Development Consent is granted DA 108/2022/ZA for subdivision creating 33 residential lots and associated works including demolition, dam dewatering, contamination remediation and new roads, subject to conditions contained in Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Precincts – Central River City) 2021, cll 2.3, 2.6, 2.7, 3.9, 4.1A, 4.1B, 6.1

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

State Environmental Planning Policy (Sydney Regional Growth Centres) 2006

State Environmental Planning Policy Amendment (Precincts) 2021

Texts Cited:

Box Hill Growth Centre Precincts Development Control Plan 2018

Category:

Principal judgment

Parties:

Leith Group Developments Pty Ltd (First Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2021/256927

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 108/2022/ZA (DA) by The Hills Shire Council (Council). The DA seeks consent for subdivision creating 33 residential lots including demolition, dam dewatering, contamination remediation and new road on land at 11-11A Nelson Road Box Hill, legally identified as Lot 3 in DP 136171 (site).

2. 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 25 July 2022. I presided over the conciliation conference.

3. Prior to the conciliation conference, the parties had filed an 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, as amended, subject to conditions.

4. In regard to the amendments to the application, the Court notes that Council, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the DA in accordance with the documents listed in the agreed conditions of consent (Condition 1 to Schedule 1 in Annexure A to this judgment). Of relevance to s 8.15(3) of the EPA Act and costs orders, the Court has subsequently “allowed” the applicant to file the amended application as now documented at Condition 1 to Schedule 1 in Annexure A.

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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties sought to assist here by compiling a jurisdictional note (received by email 25 July 2022). Mindful of this advice, I find as follows in regard to jurisdiction:

State Environmental Planning Policy (Precincts – Central River City) 2021 (Precincts–Central River City SEPP)

Interpretation of applicability

7. I accept the advice of the parties on the applicability of Precincts–Central River City SEPP to the DA. The train of logic goes as follows:

1. The DA was lodged on 16 July 2021, at which time State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SRGC SEPP) applied.

2. It is of passing interest only that on 19 November 2021, State Environmental Planning Policy Amendment (Precincts) 2021 (Precincts SEPP) commenced. Sch 2 to the Precincts SEPP was concerned with certain amendments to SRGC SEPP.

3. On 2 December 2021, the Precincts–Central River City SEPP commenced, with the site included within the land to which it applies.

4. On 18 February 2022 SRGC SEPP was repealed.

5. There are no express savings provision within the Precincts–Central River City SEPP, or otherwise, which requires the assessment of the DA to continue to be undertaken under the SRGC SEPP. While s 3.9(1) of Precincts – Central River City SEPP applies, it has no effect given the repeal of SRGC SEPP.

Appendix 10 of Precincts–Central River City SEPP

8. Appendix 10 of Precincts–Central River City SEPP is entitled The Hills Growth Centre Precincts Plan and provides operative provisions relevant to the evaluation of the DA. Sections relating to jurisdiction are now addressed.

9. The proposed development for which consent is sought, being ‘subdivision’ and ‘demolition’, are permissible with consent pursuant to ss 2.6 and 2.7.

10. The land to which the DA relates is zoned R2 – Low Density Residential. Mindful of Pt 2 s 2.3(2), I have had regard to the objectives for development in the R2 zone.

11. Part 4 s 4.1A(3) provides that the minimum subdivision lot size is as follows:

The minimum lot size for a dwelling house is 300m² if the dwelling density (per hectare) shown on the Residential Density Map in relation to the land is 15, 18 or 30.

12. No building envelope plans are provided as part of the application and each of the lots is at least 300m², which can accommodate a dwelling house.

13. Section 4.1B is concerned with residential density. Under subcl 4.1B(3), the density of any residential development to which this clause applies is not to be less than the density shown on the Residential Density Map in relation to that land. The proposed subdivision would result in a dwelling density of 19.82 dwellings per hectare, above the minimum density control of 15 dwellings under s 4.1B.

14. Part 6 s 6.1(1) of provides as follows:

Development consent must not be granted for development on land to which this Precinct Plan applies unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

15. In accordance with the advice of Council, I am satisfied in regard to cl 6.1(1).

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

16. Consideration has been given to whether the site is contaminated as required by s 4.6(1). The application was supported by a Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 7 May 2021 and a Remedial Action Plan prepared by Sydney Environmental Group dated 7 May 2021. I accept the advice of the parties that the site can be made suitable for its intended residential use subject to remediation of areas of concern, and in turn the requirements of SEPP Resilience and Hazards are addressed.

Other matters

17. Section 4.15(1) of the EPA Act requires a consent authority to take into consideration certain other matters as relevant:

• Mindful of subs 4.15(1)(a)(iii), I have given consideration to Box Hill Growth Centre Precincts Development Control Plan 2018.

• In regard to subs 4.15(1)(d), I have given consideration of the submissions to the proposal as documented in the Amended Statement of Facts and Contentions filed by Council on 11 April 2022.

• I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

18. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

19. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

20. The Court orders that:

1. The applicant is to pay the respondent’s costs ‘thrown away’ in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment of the application as now documented at Condition 1 to Schedule 1 in Annexure A, as agreed or assessed.

2. The appeal is upheld.

3. Development Consent is granted DA 108/2022/ZA for subdivision creating 33 residential lots and associated works including demolition, dam dewatering, contamination remediation and new roads, subject to conditions contained in Annexure ‘A’.

…………………………

P Walsh

Commissioner of the Court

Annexure A (291890, pdf)

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Decision last updated: 28 July 2022