McCall Gardens Community Foundation Limited v The Hills Shire Council

[2020] NSWLEC 1609

Land and Environment Court

New South Wales

Medium Neutral Citation:

McCall Gardens Community Foundation Limited v The Hills Shire Council [2020] NSWLEC 1609

Hearing dates:

Conciliation conference on 27 November 2020

Date of orders:

4 December 2020

Decision date:

04 December 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

Refer to Orders at [16]

Catchwords:

DEVELOPMENT APPLICATION – conditions relating to road layout and density – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 —Remediation of Land

State Environmental Planning Policy No 65 —Design Quality of Residential Apartment Development

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Texts Cited:

Box Hill Growth Centre Precincts Development Control Plan 2018

Category:

Principal judgment

Parties:

McCall Gardens Community Foundation Limited (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Sorensen (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2020/155198

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the conditions which specifically relate to the road layout, and as amended, the density of dwellings and design envelope in the consent of Development Application (DA) 1331/2017/JPZ granted by The Hills Shire Council (hereafter the Council) for Lot 1 DP 1235252, also known as 10-32 Terry Road, Box Hill (hereafter the site).

2. The DA which is the subject of these proceedings was lodged with the Council on 7 March 2017 and following review by the Sydney Central City Planning Panel (the Panel), was approved with conditions on 24 April 2020. Following notification, no submissions in objection were received by Council.

3. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), lodged with the Court on 25 May 2020.

4. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which commenced in Court on 27 November 2020 before me, as duty commissioner, by MS Teams. The s34 agreement was filed at the conciliation.

5. Prior to this conciliation conference, the parties agreed to amend the DA’s conditions to be relied upon in the granting of consent to the DA under appeal, which included the addition of two new conditions not previously sought. The appeal now relates to the following conditions as identified in Annexure A of the DA consent: 1 (amended); 2 (new); and 3 (new).

6. Based on these 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 requirements of concurrence authorities are not relevant for consideration in this appeal because all requirements of these authorities were satisfactorily addressed in the original consent of the DA, which remain unchanged. The decision of the parties is to uphold the appeal and grant consent to DA 1331/2017/JPZ with agreed conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with 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 power under s 4.16(1) of the EPA Act and being satisfied, pursuant to s 4.15(1), to grant consent to DA 1331/2017/JPZ with conditions, as described in Annexure A.

8. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the: State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). The parties agree that the Box Hill Growth Centre Precincts Development Control Plan 2018 (DCP) is relevant with regards to the notification requirement and in its merit assessment.

9. The requirements of SEPP 65 are addressed to the satisfaction of the parties by the new agreed conditions in the consent, which address density of dwellings and building envelopes.

10. The requirements of SEPP 55, which have previously been dealt with and satisfied in the conditions of consent, remain unchanged by the amendments made to the conditions under this appeal.

11. The parties agree that the relevant provisions of the SEPP Growth, and specifically those that relate to the Box Hill Precinct, in Appendix 11, are addressed to their satisfaction by the amended plans and agreed conditions of consent to the DA under this appeal. The proposed development as described in the amended plans and conditions of consent are considered in context of the site and adequately address the relationship to the heritage item identified on the site, satisfying cl 5.10.

12. The parties agree that the requirements of the DCP are complied with, based on the amended plans and conditions of consent. The proposed development was publicly notified in accordance with the DCP and no submissions were received by Council. Based on the amended plans supporting the DA and agreed conditions of consent, the contentions that relate to the controls specified in the DCP are addressed to the satisfaction of the parties.

13. Based on the amended plans to the DA and new conditions of consent, the contentions as expressed by Council, are explained to the Court as being resolved to the satisfaction of the parties.

14. The parties advise the Court that there are no jurisdictional impediments to this agreement and that the conditions which are the subject of appeal should be amended or added as described in Appendix A of the consent, because it satisfies the considerations of s 4.15(1) of the EPA Act. The merit assessment of the conditions considered in this appeal have been addressed by the parties to their satisfaction.

15. 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.

16. The Court orders that:

1. The applicant is granted leave to amend condition 1 and insert conditions 2 and 3 into the modified consent.

2. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A” to this agreement, which are as follows:

Title	Reference	Rev.	Author	Date
Lot Plan and Road Network	20_050 MP-A-002	B	Smith & Tzannes	21/10/2020
Envelope Plan	20_050 MP-A-004	F	Smith & Tzannes	23/10/2020
Site Sections	20_050 MP-A-008	A	Smith & Tzannes	06/10/2020
Site Sections	20_050 MP-A-009	A	Smith & Tzannes	06/10/2020
Site Sections	20_050 MP-A-010	-	Smith & Tzannes	06/10/2020
Building Envelope Plan – Lot 288	20_050 MP-A-011	A	Smith & Tzannes	21/10/2020
Building Envelope Plan – Stage 2B Dual Occupancy Lots	-	A	Proust & Gardner	15/08/2020
Building Envelope Plan – Stage 2C Dual Occupancy Lots	-	B	Proust & Gardner	01/10/2020

3. The Applicant is to pay Council’s costs thrown away as a result of the amendment pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $7,000, payable within 14 days of these Orders.

4. The Appeal is upheld.

5. Development Application 1331/2017/JPZ for the Concept Master Plan to establish a subdivision layout, maximum density yield across the R1 and R4 zones, road pattern and heritage curtilage, layout and land uses to guide the staged creation of residential flats buildings, shop top housing, multi-dwelling housing and dwelling houses at 10 - 32 Terry Road, Box Hill, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (857694, pdf)

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Decision last updated: 04 December 2020