Mogul Stud Pty Ltd v The Hills Shire Council

[2020] NSWLEC 1113

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mogul Stud Pty Ltd v The Hills Shire Council [2020] NSWLEC 1113
Hearing dates:	Conciliation conference on 6 March 2020
Date of orders:	12 March 2020
Decision date:	12 March 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [8]
Catchwords:	DEVELOPMENT APPLICATION – 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 64—Advertising and Signage State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)
Category:	Principal judgment
Parties:	Mogul Stud Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: F Rourke (Solicitor) (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Allens (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/392103
Publication restriction:	No

Judgment

1. COMMISSIONER: This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’). The appeal is against the deemed refusal of a development application, known as DA 407/2019/JP (‘DA’).

2. The DA is for the construction of a mixed use development comprising a major supermarket retailer, a “mini major” retailer, 19 speciality stores and 12 non-retail tenancies, associated storage, lobbies, landscaping and signage and car parking containing 538 spaces on the land at 745 Windsor Road, Box Hill.

3. 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 6 March 2020. I presided over the conciliation conference.

4. At the conciliation conference, the parties indicated agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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 parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the prerequisites have been satisfied in respect to the jurisdictional factors, which I consider below.

State Environmental Planning Policy No 55—Remediation of Land

6. The parties advise that the site is considered suitable for future commercial and industrial land use without the need for further investigation, remediation or management [reference document: 'Land Use Suitability Assessment' prepared by ERM dated 1 May 2018 – Class 1 Application, Vol 1 1, TAB J].

7. In turn, and having regard to the advice of the parties I am satisfied in regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land.

State Environmental Planning Policy (Sydney Region Growth Centres) 2006 – Appendix 11 – The Hills Growth Centre Precincts Plan

8. The parties advise as follows:

1. The proposed development is permissible with development consent in the B2 – Local Centre zone and is consistent with the objectives of the zone.

2. Clause 4.3 – the proposed development does not contravene the maximum height requirement.

3. Clause 4.4 – the proposed development does not contravene the maximum floor space ratio requirement.

4. Clause 5.10 – there are no Aboriginal heritage constraints for the site subject to adhering to any relevant conditions of Aboriginal Impact Heritage Permit #C0001068 [Letter from AECOM to APG dated 10 May 2018 – Class 1 Application, VOL 2, TAB 4].

5. Clause 6.1 – public utility infrastructure that is essential for the proposed development is either available or adequate arrangements have been made to make that infrastructure available when required ['Supplementary Statement of Environmental Effects' prepared by Planning Ingenuity dated 27 September 2019 – Exhibit FJR-1 filed on 3 October 2019, TAB 1, Annexure C].

6. Clause 6.6 – the proposed building will have an active street frontage after its erection ['Supplementary Statement of Environmental Effects' prepared by Planning Ingenuity dated 27 September 2019 – Exhibit FJR-1 filed on 3 October 2019, TAB 1, page 13].

9. Having regard to the advice of the parties, including their explanation of the proposal in regard to cl 6.6 and active street frontage, I am satisfied that the application satisfies the jurisdictional requirements of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 – Appendix 11 – The Hills Growth Centre Precincts Plan.

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)

10. The parties advise that appropriate measures have been taken to ensure the proposed development has no significant adverse impact on the water quality or river flows of the Hawkesbury-Nepean river and its tributaries, nor will it compromise the environmental quality of the catchment [reference document: 'Statement of Environmental Effects' prepared by Planning Ingenuity dated 14 August 2018 – Class 1 Application, Vol 1, TAB 2, page 13].

11. Having regard to the advice of the parties I am satisfied there is no legal impediment to the proposal under (3) Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2 – 1997).

State Environmental Planning Policy No. 64—Advertising and Signage

12. The parties refer to cl 8 of State Environmental Planning Policy No. 64—Advertising and Signage (‘SEPP Advertising and Signage’) and advise that the proposed signage is consistent with the objectives of SEPP Advertising and Signage and the assessment criteria under its Schedule 1 [reference document: 'Statement of Environmental Effects' prepared by Planning Ingenuity dated 14 August 2018 – Class 1 Application, VOL 1, TAB 2, Annexure B].

13. Mindful of the advice of the parties, I have had regard to the objectives of SEPP Advertising and Signage and believe the proposed signage is consistent with them. I also believe the signage satisfies the assessment criteria specified in Schedule 1.

14. I also note the advice of the parties as follows:

1. The Sydney Central City Planning Panel, as the relevant consent authority has provided its consent to the parties' agreement.

2. Notification requirements under the EPA Act have been satisfied. I have considered the submissions made in regard to the DA and believe they have been taken into consideration.

3. The parties agree that the development application does not require approval of any clause 4.6 variations to development standards, and agree that this is the case.

4. Suitable conditions of consent are included in Annexure ‘A’ to the agreement.

5. The parties are not aware of any other legal reasons preventing the Court from making the orders and approving the Development Application.

15. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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:

1. The Applicant is granted leave to amend Development Application No. 407/2019/JP and rely upon the following amended plans:

DESCRIPTION	AUTHOR	SHEET	REVISION	DATE
Site Plan	Group GSA	A1100	13	15/01/2020
Level 1 GA Plan	Group GSA	A2002	19	15/01/2020
Roof Plan	Group GSA	A2003	18	15/01/2020
Basement Plan – North	Group GSA	A2100	2	15/01/2020
Basement Plan – South	Group GSA	A2101	2	15/01/2020
Ground Level GA Plan – North	Group GSA	A2102	4	15/01/2020
Ground Level GA Plan – NS	Group GSA	A2103	4	15/01/2020
Ground Level GA Plan – West	Group GSA	A2105	4	15/01/2020
Level 1 GA Plan	Group GSA	A2106	4	15/01/2020
Roof Plan – North	Group GSA	A2107	4	15/01/2020
Roof Plan – South	Group GSA	A2108	5	15/01/2020
Site Elevation	Group GSA	A3000	8	15/01/2020
Elevation Sheet 1	Group GSA	A3001	9	15/01/2020
Site Sections	Group GSA	A3100	5	15/01/2020
Sections Sheet 1	Group GSA	A3101	4	15/01/2020
Sections Sheet 2	Group GSA	A3102	3	15/01/2020

2. The appeal is upheld.

3. Development Application No. 407/2019/JP for the construction of a mixed use development comprising 1 major supermarket retailer, 1 mini major retailer, 19 speciality stores and 12 non-retail tenancies, associated storage, lobbies, landscaping and signage and car parking containing 538 spaces on the land at 745 Windsor Road, Box Hill is approved, subject to the conditions of consent in Annexure ‘A’.

4. The hearing dates on 28 and 29 April 2020 are vacated.

……………………….

P Walsh

Commissioner of the Court

Annexure A (157 KB)

Amended Plans (18.2 MB)

Plans Part 1 (13.6 MB)

Plans Part 2 (12.0 MB)

Plans Part 3 (18.7 MB)

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Decision last updated: 12 March 2020