NGK 2000 Pty Ltd v The Hills Shire Council

[2021] NSWLEC 1353

Land and Environment Court

New South Wales

Medium Neutral Citation:

NGK 2000 Pty Ltd v The Hills Shire Council [2021] NSWLEC 1353

Hearing dates:

Conciliation conference on 18 May 2021

Date of orders:

16 June 2021

Decision date:

16 June 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court makes the following orders:

(1) The Appeal is upheld.

(2) Modification Application DA 93/2020/HC/A is approved such that:

(a) Development Consent DA93/2020/HC granted by The Hills Shire Council on 17 June 2020 is modified by the deletion of conditions 86, 113, 115 and 118 and the insertion of new condition 1A as set out in Annexure A; and

(b) Development Consent DA 93/2020/HC/A is subject to the consolidated conditions at Annexure B.

Catchwords:

MODIFICATION APPLICATION – seeking variation of contributions payable on approval of commercial and light industrial development – conciliation – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 7.11, 7.13, 8.9

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

NGK 2000 Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
A Veness (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Coutts Lawyers and Conveyancers (Respondent)

File Number(s):

2021/61620

Publication restriction:

Nil

Judgment

1. This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent of an application pursuant to s 4.55 of the EP&A Act to modify development consent 93/2020/HC for a four stage commercial and light industrial development and construction of a four-storey self-storage building and a two-storey mixed use development with basement parking (approved development) at Lot 32 Deposited Plan 834050 known as 324 Annangrove Road, Rouse Hill (site).

2. The modification sought is to vary pursuant to s 7.13(3) of the EP&A Act, the Development Contributions imposed pursuant to s 7.11 of the EP&A Act.

3. On 18 May 2021 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act).

4. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to modify the development consent in the manner described below.

5. On 28 May 2021 the parties lodged an agreement pursuant to s 34 of the Court Act.

6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ agreement involves the Court exercising the function under s 4.55(1A) and s 7.13(3) of the EP&A Act to grant the application to modify the development consent.

8. 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 Court Act because:

1. the Court has power on appeal pursuant to s 7.13(3) of the EP&A Act to impose a contribution otherwise than in accordance with a relevant contributions plan;

2. the modification involves no environmental impact thereby in satisfaction of s 4.55(1A) of the EP&A Act.

9. 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 Court Act to dispose of the proceedings in accordance with the parties’ decision.

10. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

11. Accordingly, I make the following orders:

1. The Appeal is upheld.

2. Modification Application DA 93/2020/HC/A is approved such that:

1. Development Consent DA93/2020/HC granted by The Hills Shire Council on 17 June 2020 is modified by the deletion of conditions 86, 113, 115 and 118 and the insertion of new condition 1A as set out in Annexure A; and

2. Development Consent DA 93/2020/HC/A is subject to the consolidated conditions at Annexure B.

……………………………………….

P Clay

Acting Commissioner of the Court

Annexure A (182865, pdf)

Annexure B (567806, pdf)

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Decision last updated: 16 June 2021