Newell Capital Pty Limited v The Hills Shire Council

[2013] NSWLEC 1206

Land and Environment Court

New South Wales

Medium Neutral Citation:

Newell Capital Pty Limited v The Hills Shire Council [2013] NSWLEC 1206

Hearing dates:

16 October 2013

Decision date:

30 October 2013

Jurisdiction:

Class 1

Before:

Brown C

Decision:

1. The appeal is upheld.

2. DA 680/2013/JP for a three (3) stage development that seeks to demolish all existing structures and construct 3 residential flat buildings at 21 Balmoral Road Kellyville is approved subject to the conditions in Annexure A.

3.The exhibits are returned with the exception of exhibits 1, B and C.

Catchwords:

DEVELOPMENT APPLICATION: demolition of all improvements and construction of a three stage development that seeks to demolish all existing structures and construct 3 residential flat buildings consisting of 109 units - amendments and further information address contentions raised by the council

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
The Hills Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Newell Capital Pty Limited (Applicant)
The Hills Shire Council (Respondent)

Representation:

Mr M Staunton, barrister (Applicant)
Mr C Wynn, solicitor (Respondent)
Solicitors
Consolidated Lawyers Pty Limited (Applicant)
The Hills Shire Council (Respondent)

File Number(s):

10659 of 2013

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal relates to the refusal by The Hills Shire Council of DA 680/2013/JP for a three (3) stage development that seeks to demolish all existing structures and construct 3 residential flat buildings, each being 5 storeys in height, consisting of 109 units with basement car parking for 280 resident spaces and 56 visitor parking spaces, at 21 Balmoral Road Kellyville.

1. The appeal was subject of a conciliation conference on 16 October 2013 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii).

1. The site is located within the Balmoral Road Release Area, which is currently undergoing development for urban purposes. The release area contains a range of housing densities and supporting uses. The Northwest Railway Line is to be located directly to the west of the site with proposed stations at Bella Vista and the intersection of Old Windsor Road and Samantha Riley Drive. Elizabeth Macarthur Creek adjoins the site to the east.

1. The site is zoned Rl General Residential and SP2 Infrastructure (Stormwater Management System) under The Hills Local Environmental Plan 2012 (LEP 2012). The proposed development, being characterised as a Residential Flat Building development, is permissible with development consent in the Rl General Residential zone.

1. The council filed a Statement of Facts and Contentions that identified that the following matters warranted the refusal of the application:

1. the lack of integration with future public transport infrastructure (the Northwest Railway Line),

2. unacceptable urban design by way of excessive height and number of storeys, inadequate front and side setbacks, excessive building length, internal area for some 1 bedroom units, and

3. inadequate information on potential flooding risks.

1. Prior to the conciliation conference, amendments were made to the plans that addressed the concerns of the council relating to the front setback and internal area for the1 bedroom units. The lack of integration with future public transport infrastructure was addressed through further discussions and correspondence from Transport for NSW. Additional flooding information was also provided that satisfied the councils concern over lack of information on this matter. The council did not press the contentions relating to the number of storeys, side setbacks or building length.

1. There was agreement that the development breached the 16 m maximum building height standard in cl 4.3 of LEP 2012 by a maximum of 1.7 m. The extent of the breach was shown on the architectural plans. Mr Gosling, the applicants town planner, provided a written request for exception to the height development standard, in accordance with cl 4.6 of LEP 2012. Mr Buckam, the councils town planner, states that the written request for exception to the height development standard adequately addresses the matters in cl 4.6(3) and that the proposal is considered to be in the public interest because it is consistent with the objectives of the height development standard and objectives of the R1 zone. On this basis, the variation to the height development standard can be supported.

1. Having read the written request for exception to the height development standard and with an understanding of the plans and the site, I concur with the conclusions of Mr Gosling and Mr Buckam that the variation to the height development standard is worthy of support.

1. There being no reason why development consent should not be granted, the orders of the Court are:

1. The appeal is upheld.

2. DA 680/2013/JP for a three (3) stage development that seeks to demolish all existing structures and construct 3 residential flat buildings at 21 Balmoral Road Kellyville is approved subject to the conditions in Annexure A.

3.The exhibits are returned with the exception of exhibits 1, B and C.

__________

G T Brown

Commissioner of the Court