Litsas v The Hills Shire Council

[2023] NSWLEC 1351

Land and Environment Court

New South Wales

Medium Neutral Citation:

Litsas v The Hills Shire Council [2023] NSWLEC 1351

Hearing dates:

Conciliation conference on 26 June 2023

Date of orders:

06 July 2023

Decision date:

06 July 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application as amended for the demolition of existing structures, removal of trees, and construction of a five (5) storey boarding house containing 25 boarding rooms plus one (1) manager’s room, with communal room and communal open space, over two (2) basement levels, with associated landscaping at 17 Sherwin Avenue Castle Hill is granted subject to the conditions in Annexure B.

(3) The applicant is to pay the respondent’s costs thrown away as a result of the amendment pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

Catchwords:

APPEAL – development application – boarding house – breach of height development standard – conciliation conference – agreement reached – orders made

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, Sch 1

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A

State Environmental Planning Policy (Housing) 2021, s 7A

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

The Hills Local Environmental Plan 2019, cll 1.8A, 4.3, 4.6, 7.2

Cases Cited:

Sung v City of Canada Bay Council [2023] NSWLEC 1087

Category:

Principal judgment

Parties:

James Litsas (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
S Simington (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/243157

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a 5 storey boarding house, containing 25 boarding rooms plus one manager’s room, at 17 Sherwin Avenue, Castle Hill. The applicant appeals against the refusal of the development application by The Hills Local Planning Panel on 22 June 2022. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 June 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed the same date. The agreement follows the agreement of the Hills Shire Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amendments to the development application include the reduction in the number of boarding rooms from 28 to 25 (plus a manager’s room), the removal of the bin store from the front setback to allow for greater front and side setbacks and a landscaped area that extends the full width of the site, increases in the side setbacks, and a change to the façade design to achieve a presentation that is compatible with the local character.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed statement on the jurisdictional prerequisites. I have considered the contents of the agreed statement, together with the documents referred to therein, the Class 1 Application and its attachments, the assessment report prepared for the meeting of The Hills Shire local planning panel on 22 June 2022, and the documents that are referred to in Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• A boarding house is a permissible use within the R4 High Density Residential zone in which the site is located, pursuant to The Hills Local Environmental Plan 2019 (HLEP), and the development works are for the purposes of a boarding house as defined under the HLEP at the time that the development application was lodged. The subsequent change to the definition of boarding house in the HLEP does not apply to the proposed development by virtue of the savings provision in cl 1.8A of the HLEP.

• The development application includes earthworks for the provision of the basement level for car parking. Based on the Geotechnical Investigation report dated October 2021, I have considered the matters set out in cl 7.2(3) of the HLEP.

• The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7A includes a savings provision, the effect of which is that the provisions of the SEPP ARH continue to apply to the development application. Clause 30A of the SEPP ARH requires consideration of “whether the design of the development is compatible with the character of the local area”. As a result of amendments to the plans which increase the side setbacks of the built form, make changes to the façade and improve its landscape presentation, the design is compatible with the local character, which is described in the Statement of Environmental Effects dated 12 October 2021 as containing a diversity of building forms including 3 to 5 storey residential flat buildings.

• At cl 30 of the SEPP ARH, consent cannot be granted unless certain requirements are met. Based on the assessment report prepared for the meeting of The Hills Shire local planning panel on 22 June 2022 and on the architectural plans, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH are met by the proposed development.

• The proposed development breaches the height development standard that applies pursuant to the HLEP, and therefore does not meet the ‘must not refuse’ criteria in relation to building height in cl 29(2)(a) of the SEPP ARH. Accordingly a request pursuant to cl 4.6 of the HLEP is required (see Sung v City of Canada Bay Council [2023] NSWLEC 1087 at [30]-[35]). I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 16m, pursuant to cl 4.3 of the HLEP. The proposed maximum height of 16.72m represents a contravention of 0.72m above the numerical standard. The contravention is confined to an area where the historically excavated driveway and basement for the existing dwelling creates an anomaly in the ground level. I am satisfied that:

1. The written request, lodged pursuant to cl 4.6 of the HLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach is caused by the anomaly in the ground level resulting from past excavation;

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard; and

3. Based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated.

• The amended development application is supported by an updated BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• The development application was notified by the respondent for a period of 14 days, and I have considered the issues raised in the submissions received as a result of that notification.

6. I note also that cl 29 of the SEPP ARH sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for landscaped area, solar access, private open space, and accommodation size. Accordingly, consent cannot be refused on any of those grounds.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court notes that:

1. The respondent consent authority has agreed to the applicant’s amendment of the subject development application DA756/2022/HA to substitute the plans as outlined in Annexure A; and

2. The applicant has filed the amended plans with the Court on 15 June 2023.

10. The Court orders that:

1. The appeal is upheld.

2. Development Application as amended for the demolition of existing structures, removal of trees, and construction of a five (5) storey boarding house containing 25 boarding rooms plus one (1) manager’s room, with communal room and communal open space, over two (2) basement levels, with associated landscaping at 17 Sherwin Avenue Castle Hill is granted subject to the conditions in Annexure B.

3. The applicant is to pay the respondent’s costs thrown away as a result of the amendment pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

J Gray

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 06 July 2023