Malcolm Smith Pty Limited v The Hills Shire Council

[2012] NSWLEC 1105

Land and Environment Court

New South Wales

Medium Neutral Citation:

Malcolm Smith Pty Limited v The Hills Shire Council [2012] NSWLEC 1105

Hearing dates:

1 May 2012

Decision date:

01 May 2012

Jurisdiction:

Class 1

Before:

Fakes C

Decision:

1. The appeal is upheld.

2. Development application No.507/2012/ZE for the demolition of existing structures, the erection of an integrated housing development, community title subdivision, roads and stormwater drainage is approved subject to conditions.

Catchwords:

CONSENT ORDERS - integrated housing, community title subdivision

Legislation Cited:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 2005
Threatened Species Conservation Act 1995
Environment protection and Biodiversity Conservation Act 1999,

Category:

Principal judgment

Parties:

Malcolm Smith Pty Limited (Applicant)
The Hills Shire Council (Respondent)

Representation:

Applicant: Mr A Gough (Solicitor)
Respondent: Mr C Winn (Solicitor)
Applicant: Storey & Gough
Respondent: The Hills Shire Council

File Number(s):

10038 of 2012

Judgment

1. COMMISSIONER:This is an appeal against the deemed refusal by The Hills Shire Council of development application (No. 507/2012/ZE) for the demolition of an existing dwelling and associated structures and the construction of an integrated housing development and subdivision to include 45 community-titled residential lots/ dwellings and one community association. The development is to be constructed in five stages and will include landscaping, as well as ancillary road and drainage works.

1. The site is Lot 362 of DP 10702 otherwise known as 11A Balmoral Road Kellyville.

1. The issues between the parties have been resolved and they are seeking consent orders from the Court.

Background and Planning Controls

1. The 2.6ha site is located on the northern side of Balmoral Road Kellyville within the Balmoral Road (urban) Release Area. The area was rezoned from rural residential to Residential 2(a2) in the Baulkham Hills Local Environmental Plan 2005 (BHLEP). The site is zoned R3 Medium Density Residential Zone in the Draft The Hills Shire Local Environmental Plan 2010 (Draft LEP). The proposal for subdivision and dwelling houses is permissible in both BHLEP and the Draft LEP.

1. In November 2011, the Joint Regional Planning Panel approved a development application for a similar development on the adjoining property to the east.

1. The application was notified to eight adjoining and affected properties and advertised more widely. No submissions were received. The NSW Office of Water advised that the proposal did not constitute integrated development under the Environmental Planning and Assessment Act 1979 (the Act). Sydney Water raised no objections.

1. The details of the proposal and other relevant statutory controls are described in the council's Statement of Facts and Contentions, which I adopt.

Issues

1. As council's vegetation maps show the site to contain Cumberland Plain Woodland (CPW), a Critically Endangered Ecological Community (CEEC) under the Threatened Species Conservation Act 1995 and the Environment Protection and Biodiversity Conservation Act 1999, concerns were raised about impacts of the development on that community and on the relevant provisions of BHLEP.

1. Further information was sought by the respondent and subsequently provided by the applicant. The Flora and Fauna Assessment prepared by Whelans Insites Pty Ltd dated 30 May 2011 in accordance with s 5A of the Act, concluded that due to the absence of a native groundcover and virtually no native shrub layer, CPW is not present on the site and any local occurrence would not be placed at risk of extinction by the proposed development.

1. Notwithstanding this finding, the parties have agreed on a number of conditions imposed to enhance biodiversity in the Hills Shire local government area and on the site.

Findings and orders

1. I am satisfied that the proposal is lawful and complies with the relevant provisions of BHLEP and the relevant controls in the Baulkham Hills Development Control Plan as well as s 5(a)(vi) of the Act.

1. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development application No. 507/2012/ZE for the demolition of existing structures, the erection of an integrated housing development, community title subdivision, roads and stormwater drainage, is approved subject to the conditions annexed and marked "A".

_____________________

J Fakes

Commissioner of the Court