Nero (Aust) Pty Limited v The Hills Shire Council

[2020] NSWLEC 1394

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nero (Aust) Pty Limited v The Hills Shire Council [2020] NSWLEC 1394

Hearing dates:

Conciliation conference on 28 July and 18 August 2020

Date of orders:

28 August 2020

Decision date:

28 August 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The applicant is granted leave to rely on the amended plans listed in Condition 1 at Annexure 'A' to this agreement.

(2) The appeal is upheld.

(3) Development Application No. DA//159/2020/HA for the demolition of existing structures and construction of a centre based child care facility (90 places) at Lot 78 in Deposited Plan 13443 otherwise described as 33 Canyon Road, Baulkham Hills NSW 2153, is approved subject to the conditions in Annexure 'A' to this agreement.

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 (Educational Establishments and Child Care Facilities) 2017

State Environmental Planning Policy No 55—Remediation of Land

The Hills Local Environmental Plan 2019.

Texts Cited:

Child Care Planning Guideline

Category:

Principal judgment

Parties:

Nero (Aust) Pty Limited (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
C Tideman (Solicitor)(Applicant)
A Care (Solicitor)(Respondent)

Solicitors:
Thomson Geer (Applicant)
Coutts Solicitors and Conveyancers (Respondent)

File Number(s):

2020/128047

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal of development application 159/2020/HA (‘DA’) by The Hills Shire Council’s Local Planning Panel. The DA sought consent for the demolition of an existing single-storey dwelling, the construction of a part-one-storey, part-two-storey centre-based child care centre with associated basement parking to cater for 90 children at 33 Canyon Road, Baulkham Hills, legally described as Lot 78 DP13443 (‘site’).

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 July and 18 August 2020. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached 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, including amendments to plans.

4. 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.

5. 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 identified the jurisdictional prerequisites of relevance in these proceedings and how they have been satisfied in advice to the Court filed 21 August 2020, mindful of this advice I find as follows in regard to jurisdiction:

6. The Site is zoned R3 Medium Density Residential under The Hills Local Environmental Plan 2019 (‘HLEP 2019’). 'Centre-based child care facilities' are permissible with consent in the R3 Zone. Clause 4.3 of the HLEP 2019 prescribes a maximum building height for the Site of 9 metres. No part of the Application exceeds 9m in height. The Site is not subject to a maximum FSR control under cl.4.4 of HLEP 2019.

7. Clause 23 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (‘SEPP Childcare’) provides that prior to the grant of any development consent for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline in relation to the proposed development. I am advised by the parties that the Statement of Environmental Effects lodged with the DA appropriately address the relevant provisions of the Child Care Planning Guideline (‘Guideline’). The parties agree that the application, as now amended, is consistent with the applicable provisions of the Guideline. I have given appropriate consideration under cl 23 of SEPP (Child Care Facilities) and am satisfied the relevant issues are addressed.

8. Clause 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), requires a consent authority to consider several matters before granting development consent. I am advised by the parties that a Detailed Site Investigation (‘DSI’) has been undertaken and that the land will be suitable for the intended purpose provided recommendations forthcoming from this DSI are accommodated. These recommendations are incorporated in proposed Condition 10. I am satisfied that the preconditions in cl 7(1) of SEPP 55 have been met.

9. I note that the proposal was notified and I have given consideration to the objections as filed 22 July 2020.

10. Based on the above details, 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.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

12. The Court orders:

1. The applicant is granted leave to rely on the amended plans listed in Condition 1 at Annexure 'A' to this agreement.

2. The appeal is upheld.

3. Development Application No. DA//159/2020/HA for the demolition of existing structures and construction of a centre based child care facility (90 places) at Lot 78 in Deposited Plan 13443 otherwise described as 33 Canyon Road, Baulkham Hills NSW 2153, is approved subject to the conditions in Annexure 'A' to this agreement.

.…………………………

Peter Walsh

Commissioner of the Court

Annexure A (302374, pdf)

Amended Architectural Plans (3247004, pdf)

Amended Landscape Plans (2803925, pdf)

**********

Decision last updated: 28 August 2020