Macquarie Health Corporation Ltd v Independent Planning Commission of New South Wales

[2024] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation:

Macquarie Health Corporation Ltd v Independent Planning Commission of New South Wales [2024] NSWLEC 1184

Hearing dates:

Conciliation conference on 2 and 12 April 2024

Date of orders:

16 April 2024

Decision date:

16 April 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application SSD10320 (as amended) dated 7 December 2020 relating to the redevelopment of the land and improvements contained in Folio Identifiers 1/841502, 24A/26995, 23/26995, 53/29493 and 54/29493 known as President Private Hospital and situated at 369- 381 President Avenue, Kirrawee in the State of New South Wales subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – redevelopment of the President Private Hospital – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.9

Environmental Planning and Assessment Act 1979, ss 4.36, 4.41, 4.42

Heritage Act 1977

Land and Environment Court Act 1979, s 34

Roads Act 1993

State Environmental Planning Policy (Industry and Employment) 2021, s 3.6; Sch 5

State Environmental Planning Policy (Planning Systems) 2021, s 2.6; Sch 1 s 14

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.60, 2.119, 2.122

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.2, 6.4, 6.16, 6.18; Sch 5

Category:

Principal judgment

Parties:

Macquarie Health Corporation Ltd (Applicant)
Independent Planning Commission of New South Wales (Respondent)

Representation:

Counsel:
R White (Applicant)
T Poisel (Respondent)

Solicitors:
Bruce & Stewart Lawyers (Applicant)
Crown Solicitors (Respondent)

File Number(s):

2023/51612

Publication restriction:

Nil

JUDGMENT

1. These proceedings concern an appeal against the Independent Planning Commission of NSW’s (IPC) refusal of development application SSD10320 (DA) in respect of the redevelopment of the President Private Hospital (proposed development) on land situated at 369-381 President Avenue, Kirrawee (site).

The proposed development

2. The proposed development comprising:

• demolition of three single storey dwellings on the site and areas of the existing hospital affected by the redevelopment;

• demolition of a listed local heritage item, Hotham House;

• construction of a new three-storey building with two basement car park levels, providing inpatient accommodation, therapy and rehabilitation facilities, and support services;

• an increase in the number of surgical and rehabilitation beds from 45 to 110, and a new mental health facility with 72 beds bringing total patient beds to 182;

• refurbishment of the wellness centre, comprising a rehabilitation gym, change rooms, and hydrotherapy pool;

• a new site linkage between the wellness centre and hospital; and

• upgrade of the existing three operating theatre suites and the construction of a fourth operating theatre and new recovery and sterilising facilities.

3. The proposed development will:

• comprise a new mental health unit, an upgrade to the surgical facilities, an upgrade and significant enlargement of patient accommodation (from the current 45 patient suites increasing to 182 patient suites, of which 72 will be for mental health inpatients) and an upgrade of the hydrotherapy spaces for the inpatient and outpatient programs being offered to the public;

• permit the relocation and substantial upgrade of the principal entrance to the hospital facility;

• provide services and improved facilities that promote a healthier and more interactive lifestyle for the Sutherland community;

• be a major employer for the Sutherland Shire Council (Council) Local Government Area; and

• require a capital investment value of approximately $87 million.

History of the proceedings

4. On 28 May 2019, the Department of Planning and Environment (Department) issued the Secretary's Environmental Assessment Requirements in relation to the proposed development to the applicant.

5. On 7 December 2020, the applicant lodged the DA together with an Environmental Impact Statement dated November 2020 (EIS).

6. The Department exhibited the DA and EIS between 16 December 2020 and 3 February 2021, during which period, the Department received:

• 54 unique public submissions, of which 50 were objections, two were in support, and two provided comment on the proposed development;

• advice from seven public authorities; and

• one submission from the Sutherland Shire Historical Society objecting to the proposed development.

7. On 23 December 2022, the IPC refused the DA.

8. On 16 February 2023, the applicant commenced these proceedings.

9. On 6 June 2023, a conciliation conference was held at the site. Prior to that, the IPC had invited all who had previously made submissions to it regarding the proposed development to speak at the public part of the conciliation conference. Those who had expressed an interest to address the Court were named in a list of objectors document filed by the IPC on 31 May 2023. They consisted of representatives of the Council, the Sutherland Shire Historical Society (Historical Society), and Ms Kim Hatherly. Ms Hatherly represented herself and the Historical Society. The s34 conciliation conference was terminated on 18 September 2023.

10. On 29 September 2023, the matter was fixed for hearing on 2-3 April 2024 commencing onsite at 9:30am.

11. On 26 October 2023, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Court granted leave to the applicant to amend the DA and rely on the following amended and additional documents:

1. Interpretation Strategy Report (Issue 8) prepared by Graham Brooks of GBA Heritage Consultants dated July 2023;

2. Salvage Schedule (Issue B) prepared by Laura Schultz of GSA Heritage dated July 2023;

3. Options for Retention of Hotham House Report prepared by Stephen Phillips of lmageScape Design Studios (lmageScape) dated 28 August 2023, together with Amended Annexure and Plans for Scheme F dated 11 September 2023 (Options Report);

4. Plan for Management of Noise and Vibration Report prepared by Acoustic Directions Pty Ltd dated 14 July 2023;

5. Assessment of Proposed Access Driveway prepared by Alex Grey of Greys Consulting dated 18 July 2023; and

6. Revised Ground Floor, Basement and Car Park Plans prepared by Stephen Phillips of lmageScape dated 8 August 2023 comprising:

1. Drawing A001 Title Sheet, version 62;

2. Drawing A028 West Carpark Detail Plan, version 62;

3. Drawing A103 Basement plan Level 1 & 2, version 62; and   

4. Drawing A104 Ground Floor General Arrangement Plan, version 62.

(collectively, the additional documents).

12. On 28 March 2024, the parties entered into a s34 agreement. On the same day, the IPC’s legal representative contacted both the Council and Ms Hatherly by email to inform them that, subject to conditions, the IPC will not be contesting the applicant’s proposed redevelopment, including the demolition of Hotham House.

13. The Council responded by email the same day to the effect that, it had already conveyed its concerns and objections about the proposed development on several occasions, and that it will not be attending the hearing on 2 April 2024.

14. Ms Hatherly also responded by email the same day. She confirmed receipt of the email notification, but did not otherwise indicate whether she would like to address the Court on 2 April 2024.

15. On 2 April 2024, the Court and the parties (along with the parties’ experts) attended the site at 9:30am. No objector was present at the site. The parties sought and were granted an adjournment to allow the matter to be reallocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The matter resumed in Court at 2:00pm, and orders were made to adjourn the hearing to 12 April 2024 to allow for renotification.

16. On 3 April 2024, the IPC notified the public and those people who had previously made a submission to the IPC in connection with the DA that there would be an opportunity to address the Court on the proposed development at the site on 12 April 2024. The notification was made by publication on the IPC’s website and thereafter by way of email to those individuals who had lodged a submission previously.

17. On 12 April 2024, Mr Jamie Maclachlan addressed the Court at the site. He had previously provided a written submission to the IPC on 7 December 2022. The parties are satisfied that the matters addressed by Mr Maclachlan both in his written and oral submission have been addressed by the terms of the development consent together with the conditions.

18. Having reached an agreement, the parties’ decision involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

Jurisdictional preconditions

19. 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 preconditions relevant to the exercise of the Court’s power to make the proposed final orders were addressed in the parties’ joint jurisdictional submission annexed to their written agreement.

20. In making the orders to give effect to the agreement between the parties, I am 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 Environmental Planning and Assessment Act 1979 (EPA Act). However, I am satisfied, on the evidence and the submissions of the parties that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following.

21. The applicant is the registered proprietor of the site and owner’s consent accompanied the DA.

22. Existing buildings on the site include a single storey hospital building fronting President Avenue, Hotham House (previously used for inpatient rehabilitation fronting Hotham Street), a building used for hospital administration, two residential dwellings, paved areas, car parking and landscaping. Hotham House has been designated as a local heritage item under Sch 5 of the Sutherland Shire Local Environmental Plan 2015 (Sutherland LEP).

23. The site is zoned part Special Activities (Health Services Facility) (SP1) and part Low Density Residential (R2) under the Sutherland LEP.

24. As the proposed development is a development for the purpose of a health services facility, it is permissible with consent pursuant to s 2.60 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP).

25. The site to the east of the site is zoned R3 Medium Density Residential.

• the site is approximately 10 to 15 minutes’ walk (approximately 550 to 750 metres) from Kirrawee and Gymea train stations, which is situated on the Cronulla line and links Sydney’s southern suburbs to the Sydney CBD;

• the nearest bus stop is 100 metres away and is serviced by the 976 and 993 bus routes, which provide transport to the local suburbs including Sutherland, Kirrawee, Grays Point, Miranda and Engadine;

• the site enjoys excellent connections to public transport by train and bus routes to Miranda, Gymea and Sutherland; and

• there is spare capacity in the nearby road network.

26. The surrounding site use is largely low density residential with one additional health facility being a skincare clinic located on the south-eastern corner of the site.

Integrated development

27. The proposed development includes access to a basement car park along President Avenue which is a classified “Regional” road pursuant to the Roads Act 1993. As works on a classified road are proposed, consent from the relevant Roads Authority is required.

28. Transport for NSW (TfNSW) has provided concurrence to the proposed development, subject to the driveway being designed and constructed to the satisfaction of the relevant Roads Authority.

29. The Department recommended a condition that requires a Road Safety Audit of the detailed design to be undertaken and any recommendations incorporated into the design. This will enable any residual safety concerns to be addressed prior to the operation of the hospital. The detailed design of the access will be submitted to the satisfaction of the relevant Roads Authority, pursuant to condition B6(c) of the proposed conditions of consent.

30. The Department’s assessment concluded that access from President Avenue would be beneficial for the operation of the hospital as it provides a secondary access to the site and would subsequently reduce the impact on other users of the intersection to the east.

31. The Department has also consulted with the relevant public authorities responsible for other relevant approvals under ss 4.41 and 4.42 of the Environmental Planning and Assessment Act 1979 (EPA Act). It has considered their advice and included suitable conditions in its recommended conditions of consent, which are reflected in the proposed conditions of consent.

Biodiversity Conservation Act 2016 (BC Act)

32. Section 7.9(2) of the BC Act requires all State significant development applications to be accompanied by a Biodiversity Development Assessment Report (BDAR) unless the Planning Agency Head and the Environment Agency Head determine that the project is not likely to have any significant impact on biodiversity values.

33. The applicant submitted a BDAR waiver request as part of the EIS. The Environment and Heritage Group of the Department reviewed the request and concluded that the development is not likely to have any significant impact on biodiversity values.

34. On 9 September 2020, the Department determined that the DA is not required to be accompanied by a BDAR and a waiver was issued for the DA.

State Environmental Planning Policy (Planning Systems) 2021 (Planning Systems SEPP)

35. The proposed development is declared by s 4.36 of the EPA Act and s 2.6 of the Planning Systems SEPP to be State significant development because it is permissible with development consent and is of a type specified in Sch 1 (s 14), namely development for the purposes of a hospital and has a Capital Improved Value in excess of $30 million.

TI SEPP

36. Under s 2.60(1) of the TI SEPP, development for the purposes of a health services facility may be carried out by any person on site in a prescribed zone. The R2 zone is a prescribed zone where health services including hospitals are permissible with consent.

37. The proposed development has a frontage to a classified road and therefore s 2.119 of the TI SEPP applies. The applicant’s traffic reports, independent traffic review and the Department’s assessment report noted that vehicular access will also be provided from Hotham Road and that the safety, efficiency and operation of the classified road will not be adversely affected as a result of the development (see Section 6 on pp 13-17 of the SEARS Acoustic Report – Noise and Vibration Assessment for Proposed Alterations and Additions to President Private Hospital Report prepared by Osbon Fong, Project Engineer of Acoustic Directions dated 29 June 2020 reproduced as Appendix 6 to the EIS).

38. The proposed development constitutes traffic generating development in accordance with s 2.122 of the TI SEPP as it increases the hospital from 45 to 182 beds. This meets the definition of ‘traffic generating development’ as it includes 100 or more beds and the site has access to a classified road.

39. The Department consulted with TfNSW and Council and took into account the submissions made. In addition, the assessment has taken into account the accessibility of the site, including the applicant’s Green Travel Plan (GTP) which includes measures to encourage ride sharing, using public transport and active transport, thus reducing the traffic impacts on the road network. The assessment also took into account potential traffic safety implications of the proposed development and concluded that the operational traffic generated by the development is acceptable, subject to the conditions of consent and the implementation of a GTP in consultation with TfNSW and the Council. The assessment considered the proposed parking arrangements and concluded the project provides adequate car parking spaces and would not have a detrimental impact on the locality in terms of demand for on-street car parking spaces.

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

40. The EIS accompanying the DA included an Environmental Site Investigation Report and a remedial Action Plan. Pursuant to s 4.6(1) of the RH SEPP, the parties submit and I accept that the site can be made suitable for the proposed use subject to the recommendations of the Detailed Site investigation Report and the Remedial Action Plan being undertaken. The proposed conditions of consent require that remediation to be carried out (see conditions D36 to D38).

State Environmental Planning Policy (Industry and Employment) 2021 (IE SEPP)

41. Section 3.6 of the IE SEPP applies because the DA seeks approval to display signage. Based on the assessment carried out by the Department, the parties submit and I accept that the signage is consistent with the objectives of the relevant chapter of the SEPP and satisfies the assessment criteria in Sch 5 of the SEPP.

Sutherland LEP

42. The site is zoned part SP1 and part R2. Hospitals are permissible with consent in the SP1 zone. While the Sutherland LEP does not nominate hospitals as a permissible use within the R2 zone, the TI SEPP makes this use permissible and allows medical services facilities to be located within the R2 zone.

43. Building height provisions (cl 4.3) vary across the site as follows:

• SP1 zone – unspecified; and

• R2 zone – 8.5m.

44. The proposed development seeks to vary the height limit on the R2 site by 1.24m with a maximum building height within that zone of 9.74m.

45. Floor space ratio (FSR) provisions (cl 4.4) also vary across the site:

• SP1 zone – unspecified; and

• R2 zone – 0.55:1.

46. For that part of the proposed development located within the R2 zone, the applicant seeks development consent for an FSR of 1.16:1, a variation of 110% on the R2 land.

47. The DA is accompanied by a written cl 4.6 request seeking variation to the building height and FSR development standards. The Department analysed the applicant’s written cl 4.6 requests in detail at Appendix C of the Assessment Report and considered that the applicant’s written request sufficiently demonstrated that compliance with the maximum height of buildings development standard is unnecessary and that there are sufficient environmental planning grounds to justify the variation sought. Having regard to the parties’ submissions and the terms of the written request, I approve of the variation to the height and FSR development standards in the Sutherland LEP in this case.

48. The DA proposes the demolition of Hotham House and cl 5.10 applies.

49. An item of local environmental heritage significance, Hotham House, is located on the site. Item 1510 under Sch 5 of the Sutherland LEP describes Hotham House as a house and garden. Hotham House is located at 65 Hotham Road (identified as Lot 24A in DP 26995).

50. Hotham House was originally proposed for listing as a heritage item in the Sutherland Heritage Study in 1993, but listing did not proceed at that time. During 2013 and 2014, Hotham House was again proposed as a heritage item, but at the time an independent review did not support heritage listing.

51. The Council subsequently engaged Architectural Projects to prepare a Heritage Assessment Review in 2019, which concluded that Hotham House and its garden met the threshold for listing as a heritage item. Hotham House was included in Sutherland LEP as a local heritage item on 3 April 2020.

46. The Architecture and Heritage Joint Expert Report was filed on 18 March 2024. It was prepared by Stephen Phillips, the applicant’s architect expert (Stephen Phillips), Graham Brooks, the applicant’s heritage expert (Graham Brooks) and the IPC’s heritage expert (James Phillips) (JER):

1. Graham Brooks and James Phillips (collectively, the Heritage Experts) agreed that the demolition of a heritage item may be justified in two ways – namely, (1) by finding that the item does not have heritage significance or heritage significance such that it does not meet the Heritage Office Criteria and (2) by a factor so strongly in favour of the new building that it justifies an adverse impact on heritage significance (at par 11).

2. In relation to Particular 1(a) of the filed Amended Statement of Facts and Contentions (ASOFC), the Heritage Experts agree that:

1. Hotham House was added to Sch 5 of Sutherland LEP on 3 April 2020 as “House and Garden”, Item 1510 of Local Significance, comprising Lot 2A in DP26995 (par 15 of the JER);

2. Sutherland LEP 2015 Sch 5 Heritage map HER006A identifies the part of the site which is the subject of the heritage listing (see Fig 1). The lot, which faces to Hotham Road relates to only a relatively small percentage of the overall hospital site the subject of this application (par 16 of the JER); and

3. the remainder of the subject site is not listed as a heritage item, is not within a Heritage Conservation Area and is not in the vicinity of any other heritage item (par 17 of the JER).

3. In relation to Particular 1(b):

1. James Phillips formed the opinion that the proposed development does not meet either of the two objectives under cl 5.10 of the Sutherland LEP. In his view, the demolition of Hotham House can be justified if it is demonstrated the requirements for a safe, operational hospital could not be met without its demolition (pars 20-23 of the JER).

2. Graham Brooks formed the opinion that Hotham House is not of such heritage significance at the local level to be retained, in whole or in part, if its physical presence in the entry forecourt has the potential to degrade the efficient delivery of a modern, safe and functionally efficient health facility for the local community (par 37 of the JER).

3. Stephen Phillips formed the opinion that the retention of Hotham House on the design and functionality of the expanded hospital has a severe impact on its ability to satisfy safety, regulatory and service requirements of a modern hospital. He considered the core issue of retention as that of wayfinding, on the basis that it creates a blind entrance with a constricted patient arrival point. He concluded that the retention of Hotham House would result in adverse outcomes (pars 54-55 of the JER);

4. In relation to Particular 1(c):

1. James Phillips formed the opinion that the expansion of a hospital or medical facility has the potential to meet provisions of the EPA Act. He noted the tension between good design, in this case of a complex health facility and the sustainable management of the built and cultural heritage on the site (par 56 of the JER); and

5. Graham Brooks formed the opinion that any project involving both heritage issues and proposals for major community health facilities will need careful heritage management to ensure, at a minimum, a continuation of sufficient recognition and public memory, through a number of options and opportunities (par 57 of the JER). In relation to Particulars 1(d), (e), (e1) and (e2):

1. Stephen Phillips referred to his report ‘Hotham House Retention Strategy’ of 28 August 2023 which set out his investigation of the options for full or partial retention of Hotham House, including Scheme F. He concluded that retention of Hotham House in whole or in part to be not viable, for reasons given at pars 74-76 of the JER.

2. James Phillips formed the opinion that the demolition of Hotham House to be inconsistent with the Sutherland LEP and the EPA Act unless justified by a factor so strongly in favour of the new building. He concluded that Stephen Phillips has provided information showing a detailed interrogation of options or designs predicated on retaining and designing around Hotham House. He indicated that he would defer to some extent to Stephen Phillips on the viability of retaining the front section of Hotham House.

3. Graham Brooks deferred to Stephen Phillips on the issue of options analyses and the identified impacts on the safety and efficiency of the new hospital should Hotham House be retained in whole or in part.

6. In relation to Particulars 1(f) and 1(g), the Heritage Experts have agreed that:

1. Hotham House has been fitted out for many years as a physiotherapy centre for the hospital. This is unlikely to be its long-term use so close to the formal entry to the expanded hospital, so that use will need to be stripped out. A program of adaptive re-use will be required to support a new, possibly self-contained role;

2. the structural report has identified a range of issues, including extensive cracking in the “ballroom” section of the building, which must be rectified as part of any re-use program. The building shows evidence of long-term cracking and repairs;

3. any adaptive re-use will need to meet all functional and statutory requirements including the provision of access and facilities for the mobility impaired. Any such access will need to be directed through the rear of the building, given the nature of the front steps and general gradient up from Hotham Road;

4. the Scheme F version 63 drawing set illustrates an option for the retention of the main eastern portion of Hotham House with the rear, western row of supporting rooms removed to enable passenger vehicles to approach the nearby main hospital entry. The removal of the rear rooms to achieve the required functionality of the arrivals court is regarded by the Heritage Experts as a reasonable and acceptable compromise;

5. on the basis that the vast majority of the functional site area utilised by the poultry farming operation were subdivided off after World War Two, there needs to be a thorough interpretative strategy and plan pertaining to the operation of the farm, including the role of the house, during the first half of the 20th century; and

6. there are unlikely to be any archaeological relics present on the overall site that would generate more than a normal archaeological management program in accordance with the relevant provisions of the Heritage Act 1977,

(par 78 of the JER).

53. In section 3.0 (Examination of Heritage Significance):

1. The Heritage Experts broadly agreed about the statements of significance in respect of Hotham House. However, they are divided on the heritage significance of the ballroom and the item more generally given the removal of all physical evidence of the poultry farming operation.

2. James Phillips concluded that the retained heritage significance of the listed “House and Garden” is as set out in the State Heritage Inventory data sheet included in the JER as Attachment 2 (par 80 of the JER);

3. Graham Brooks concluded that, in circumstances where the physical infrastructure and operational aspects of poultry breeding had been totally removed, the remnant heritage values contained in Hotham House, including its currently unremarked role as a support service area for the hospital over many decades, can be celebrated and recognised through a comprehensive interpretation strategy and plan (par 82 of the JER).

54. As a result of the analysis undertaken in the JER, together with the other heritage documents accompanying the DA, the parties submit and I accept that it has considered the effect of the proposed development on the heritage significance of Hotham House.

55. The site is within a "flood planning area” and cl 5.21 applies.

56. The Department commissioned a peer review of the applicant’s flood assessment which accompanies the DA.

57. The Department concluded that it was satisfied that all proposed alterations and additions to the hospital would comply with relevant flood planning levels. It recommended conditions of consent to mitigate potential flood impacts to the operating theatre, including requiring a more detailed flood model which includes the overland flow path design in response to a Probable Maximum Flood event.

58. Based on the Department’s assessment which considered the matters in cl 5.21(3), and having regard to the proposed conditions of consent (namely, conditions E34 and C18), the parties submit and I accept that the proposed development is compatible with the flood function and behaviour on the site will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, will not adversely affect the safe occupation and efficient evacuation of people in the event of a flood, incorporates appropriate measures to manage risk to life in the event of a flood and will not adversely affect the environment.

59. The DA proposes excavation and therefore cl 6.2 of the Sutherland LEP applies. The DA is accompanied by an EIS and Geotechnical Site Investigation Report which address the matters identified in cl 6.2(3).

60. The DA is accompanied by a Flood Risk Assessment, which assessed stormwater impacts, and concept stormwater plans. The matters contained in those assessments and drawings, together with the conditions of development consent, demonstrate that the matters in cl 6.4 of the Sutherland LEP have been satisfied.

61. The DA is accompanied by an urban design report which addresses the matters in cl 6.16 of the Sutherland LEP. Clause 7.4.5 on p 64 of the EIS addresses crime prevention through environmental design (CTPED) principles and Appendix 6 of the EIS contains a CPTED Report by Chistine Kelly, Urban and Regional Planner for ImageScape dated June 2020.

62. The applicant’s reports, including the EIS, address the matters required to be considered in cl 6.18 of the Sutherland LEP.

Conclusion and orders

63. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

64. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application SSD10320 (as amended) dated 7 December 2020 relating to the redevelopment of the land and improvements contained in Folio Identifiers 1/841502, 24A/26995, 23/26995, 53/29493 and 54/29493 known as President Private Hospital and situated at 369- 381 President Avenue, Kirrawee in the State of New South Wales subject to the conditions set out in Annexure A.

…………………….

S Dixon

Senior Commissioner of the Court

Annexure A (396458, pdf)

**********

Decision last updated: 18 April 2024