Raland Constructions Pty Ltd v Hunters Hill Council (No 2)

[2021] NSWLEC 1572

Land and Environment Court

New South Wales

Medium Neutral Citation:

Raland Constructions Pty Ltd v Hunters Hill Council (No 2) [2021] NSWLEC 1572

Hearing dates:

9-11 August 2021

Date of orders:

28 September 2021

Decision date:

28 September 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application 2020-1079 seeking consent for demolition of the existing structures ancillary to a new 2 storey child care centre for 101 children, as amended, above a basement car parking level with associated landscaping, fences, paving and tree removal at 2 Massey Street, Gladesville, subject to the conditions of consent at Annexure A.

(3) All exhibits are returned, except for Exhibits A, B, C, D, E, F, H, P and 7.

Catchwords:

DEVELOPMENT APPLICATION – centre based child care – heritage conservation area – item of local heritage significance – acoustic amenity of neighbouring properties – the suitability of the site for the development

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Cases Cited:

Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535

Category:

Principal judgment

Parties:

Raland Construction Pty Ltd (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
N Eastman (Respondent)

Solicitors:
Swaab (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

20/342950

Publication restriction:

No

Judgment

1. COMMISSIONER: In a judgment given on 16 September 2021, the Court gave its decision Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535 in respect of Development Application 2020-1079 seeking consent for demolition of the existing structures ancillary to a new 2 storey child care centre for 101 children, as amended, above a basement car parking level with associated landscaping, fences, paving and tree removal at 2 Massey Street, Gladesville.

2. In the proceedings, the Applicant sought to amend the application before the Court, and the Respondent, as the relevant consent authority agreed, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations), to the Applicant amending the development application.

3. I directed the Applicant to lodge the application so amended on the NSW Planning Portal (Planning Portal) in accordance with cl 55(1) of the EPA Regulations, and to file the amended application with the Court.

4. The Court was advised by the Applicant on 30 August 2021 that the amended application was lodged on the Planning Portal.

5. However, at the time of delivery of judgment, the Applicant was yet to file the amended application for development consent with the Court.

6. Furthermore, parties had not addressed the Court on the matter of costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EPA Act).

7. In my preliminary judgment, I determined that the development the subject of the development application warrants the grant of consent in accordance with s 4.16 of the EPA Act, subject to conformance with the Court’s directions and those conditions of consent agreed by the parties.

8. Accordingly, the Court directed that:

1. The Applicant is to file the amended application for development consent with the Court as directed at [3], within 7 days of the date of these orders.

2. As the Court was not addressed on the subject of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the EPA Act, the parties are directed to provide, within 14 days of the date of these orders, short written submissions of one page in length as to whether the amendments are considered minor for the purposes of s 8.15(3) of the EPA Act, if the matter is not otherwise agreed.

9. On 20 September 2021, the amended application was filed with the Court.

10. On 21 September 2021, the parties advised the Court via agreed submissions that the amendments are considered minor for the purposes of s 8.15(3) of the EPA Act.

11. As the parties have now complied with the directions at [145] of my preliminary judgment of 16 September 2021, it is appropriate to make orders granting development consent in accordance with s 4.16 of the EPA Act.

Orders

12. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application 2020-1079 seeking consent for demolition of the existing structures ancillary to a new 2 storey child care centre for 101 children, as amended, above a basement car parking level with associated landscaping, fences, paving and tree removal at 2 Massey Street, Gladesville, subject to the conditions of consent at Annexure A.

3. All exhibits are returned, except for Exhibits A, B, C, D, E, F, H, P and 7.

…………………..

T Horton

Commissioner of the Court

Annexure A (908788, pdf)

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Decision last updated: 28 September 2021