Liu v The Hills Shire Council

[2022] NSWLEC 1436

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liu v The Hills Shire Council [2022] NSWLEC 1436

Hearing dates:

Conciliation conference held on 9 August 2022

Date of orders:

18 August 2022

Decision date:

18 August 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld

(2)   Development application 717/2019/HA, as amended, for the construction of a three-storey boarding house, basement parking, with landscaping and associated works at Lot 43 in DP 6722, also known as 122 Old Northern Road, Baulkham Hills, is determined by the grant of consent, subject to the conditions of consent at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – stormwater - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Hills Local Environmental Plan 2019, cl 2.3,

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Texts Cited:

The Hills Shire Development Control Plan 2012

Category:

Principal judgment

Parties:

Yi Qun Liu (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)

Solicitors:
Sattler and Associates (Applicant)
S Kondilios, Hall and Wilcox (Respondent)

File Number(s):

2021/328522

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 717/2019/HA, which as amended, seeks the construction of a three-storey boarding house comprising 14 rooms, basement parking, with landscaping and associated works at Lot 43 in DP 6722, also known as 122 Old Northern Road, Baulkham Hills (the site).

Background

2. The DA was submitted to Council on 20 December 2018, and after notification, made consistent with the relevant planning controls, nine submissions in objection were received during the notification period. The DA was also referred to Transport for NSW (TfNSW) and Castle Hill Police. After internal review, the DA was refused on 27 April 2021.

3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The applicant sought to amend the DA under appeal, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), which was granted leave by the Court by way of a Notice of Motion, and also agreed by the Council to subsequent amendments to proposed stormwater drainage. Relevant plans and documents which amend the DA, were uploaded to the NSW Planning Portal by the applicant. The amended plans were not re-notified by Council as the amendments to the DA were considered environmentally positive in resolving issues of the original DA.

5. The Court agreed to a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held without an onsite view and remotely via Microsoft Teams. One resident objector provided oral submission at the conciliation.

6. Based on the amended DA 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 have been considered and are resolved. The considerations of support from the TfNSW and Police are addressed. The issues raised by the objectors, both by written and oral submission, have also been considered and are satisfied. The decision of the parties is to uphold the appeal and grant consent to DA 717/2019/HA, with conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with

8. 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, to grant consent to development application DA 717/2019/HA, subject to conditions described in Annexure ‘A’, made pursuant to s 4.17(1).

Jurisdictional prerequisites

9. The DA was submitted with the consent of the site owners, pursuant to cl 49 of the EPA Reg.

10. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining the development application. The following jurisdictional requirements have been specifically assessed:

1. The Hills Local Environmental Plan 2019 (THLEP):

1. Pursuant to cl 2.3 of the THLEP, the site is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court is permissible with consent, pursuant to cl 2.3. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the THLEP.

2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH):

1. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP ARH. Specifically, the proposed boarding house is compatible with the character of the local area, as required by cl 30A of SEPP ARH.

3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX):

1. The proposed development complies with the provisions of the SEPP BASIX. A BASIX certificate for the proposed development as amended, is identified in the conditions of consent.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The Court is advised that the site has historically been used for residential purposes, and together with the agreed conditions of consent, addresses the relevant requirements of cl 4.6 of SEPP Resilience.

5. The Hills Shire Development Control Plan 2012 (DCP):

1. The relevant requirements of the DCP are addressed, based on the amended plans, supporting documents to the DA and conditions of consent. The original DA was publicly notified in accordance with the DCP with nine submissions received. According to the parties have been considered in their merit assessment and any issues raised have been addressed.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement, or for the Court in making the orders as sought.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 717/2019/HA can be determined by the grant of consent.

13. 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.

14. The Court notes that:

1. The respondent, as the relevant consent authority has agreed to the applicant amending DA 717/2019/HA, pursuant to cl 55(1) of the EPA Reg.

2. The relevant amended development application documents were lodged on the NSW Planning Portal on 28 June 2022 and 9 August 2022.

3. The documents supporting the amended development application was filed with the Court on 9 August.

15. The Court orders that:

1. The appeal is upheld.

2. Development application 717/2019/HA, as amended, for the construction of a three-storey boarding house, basement parking, with landscaping and associated works at Lot 43 in DP 6722, also known as 122 Old Northern Road, Baulkham Hills, is determined by the grant of consent, subject to the conditions of consent at Annexure ‘A’.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (320862, pdf)

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Decision last updated: 18 August 2022