Tanmay Development 2 Pty Ltd v The Hills Shire Council

[2020] NSWLEC 1437

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tanmay Development 2 Pty Ltd v The Hills Shire Council [2020] NSWLEC 1437

Hearing dates:

Conciliation conference on 16 September 2020

Date of orders:

16 September 2020

Decision date:

16 September 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   Leave is granted for the Applicant to rely on:

(a)   the amended BASIX Certificate no. 983431M_02 as referred to in condition 1 of the conditions of consent at Annexure A; and

(b)   The Detailed Site Investigation and Dust Management Plan prepared by Australian Geotechnical Pty Ltd dated 1 March 2019.

(2)   The appeal is upheld.

(3)  Development application no. 1032/2019/JP for demolition of existing structures and construction of a multi dwelling development comprising of 15 x 2 storey townhouses and basement car parking at 70-72 Old Northern Road, Baulkham Hills is approved subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – multi-dwelling housing – affordable housing – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Roads Act 1993

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

The Hills Local Environmental Plan 2012

The Hills Local Environmental Plan 2019

Texts Cited:

Seniors Living Policy: Urban Design Guidelines for Infill Development

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Tanmay Development 2 Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/163049

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Around 100m north of the shopping precinct in Baulkham Hills, both sides of Old Northern Road are characterised by townhouse developments. However, dwelling houses remain at 70 and 72 Old Northern Road. This appeal concerns an application by Tanmay Development 2 Pty Ltd (“Tanmay”) for development consent for the demolition of those dwelling houses and ancillary structures, and for the construction of a multi-dwelling housing development containing 15 two-storey dwellings, with basement car parking for 32 cars. The proposal relies on the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”), and 4 of the 15 dwellings are proposed to be used for the provision of affordable housing. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Tanmay lodged the development application with The Hills Shire Council (“the Council”) on 20 December 2018. Following the expiry of the period after which a development application is deemed to be refused, Tanmay lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. Following amendments to the development application in the course of the appeal, each of the contentions raised by the Council on the appeal has been resolved.

3. A hearing of the appeal commenced today, on 16 September 2020. Following an adjournment of the hearing, the Court arranged a conciliation conference between the parties with respect to the appeal, pursuant to s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference was then held on the same date, 16 September 2020. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is supported by a Jurisdictional Statement of Reasons. The decision agreed upon is for leave to be granted to amend the development application to rely on an updated BASIX certificate, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

5. The development application, as amended in the course of the appeal proceedings, proposes the construction of a multi-dwelling housing development, comprising 15 two-storey townhouses with a driveway entrance to basement car parking for 32 car spaces including 5 visitor spaces and 1 accessible space. Vehicle and pedestrian access and egress are separately provided from Old Northern Road. Vehicles are able to enter and exit the site in a forward direction.

6. Four of the dwellings are two bedrooms, and the remainder are 3 bedrooms. Each dwelling has individual stair access from the basement to ground floor, and has a courtyard, outdoor area and private open space balcony. There is also a common lift access from the basement to ground floor, communal open space and landscaping throughout the site and along all property boundaries.

7. The design of the built form is in three blocks, including two rectilinear buildings that are perpendicular to Old Northern Road, and a small building containing two dwellings to the rear of the site. The ground floor plan demonstrating this built form layout is shown at Figure 1.

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• Development for the purpose of multi dwelling housing is permissible with consent in the R3 Medium Density Residential zone in which the site of the proposed development is located, pursuant to the provisions of the The Hills Local Environmental Plan 2012 (“THLEP 2012”). I note that despite the THLEP 2012 having been renamed, and the The Hills Local Environmental Plan 2019 (“THLEP 2019”) having commenced, a savings provision in cl 1.8A of the THLEP 2019 makes it clear that development applications made before the commencement of the THLEP 2019 “must be determined as if this Plan had not commenced”. As such, the THLEP 2012 continues to apply to the proposed development.

• The proposed development complies with the applicable development standards in the THLEP 2012.

• Part 2 Division 1 of the SEPP ARH applies to in-fill affordable housing, including multi-dwelling housing. Clause 10(2) of the SEPP ARH provides that “this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area”. Bus stops are located on both sides of Old Northern Road, within 35m of the site for the bus stop on the western side of the road, and approximately 310m on the opposite side of the road. The bus stops are serviced by a number of bus services, which meet the frequency and time requirements of the SEPP ARH definition of an accessible area.

• The proposed development complies with the maximum floor space ratio (“FSR”) that applies pursuant to cl 13(2)(a)(ii) of the SEPP ARH. The proposed development has a FSR of 0.54:1. The applicable maximum FSR is 0.72:1, which is calculated based on:

1. An “existing maximum floor space ratio for any form of residential accommodation permitted on the land” taken from The Hills Development Control Plan 2012 (“THDCP”) maximum FSR of 0.5:1 for dual occupancy developments,

2. An AH of 22.67%, which is the percentage of gross floor area of the development that is used for affordable housing, calculated by the floor area of the affordable units as a percentage of the total gross floor area, and

3. Applying the formula in cl 13(2)(a)(ii), which results in the applicable maximum FSR of 0.72:1.

• At cl 14 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. Each of these criteria are met by the proposed development. As such, the proposed development cannot be refused on the basis of site area, landscaped area, deep soil zones, solar access, parking or dwelling size.

• Clause 15 of the SEPP ARH requires that the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development have been taken into consideration. The Council is satisfied, and I accept, that the proposed development is consistent with the Seniors Living Policy: Urban Design Guidelines for Infill Development.

• Clause 16A of the SEPP ARH requires that the Court, in exercising the functions of the consent authority, take “into consideration whether the design of the development is compatible with the character of the local area”. The character of the local area is defined by the two-storey townhouse developments that are predominant in the area. The site is bounded to the north, south and east (across Old Northern Road) by two-storey townhouse developments. Those developments are in various built forms, including a rectilinear form similar to that of the proposed development. As such, the design of the proposed development is compatible with the form of the existing surrounding development and therefore with the character of the local area.

• Consistent with the terms of cl 17 of the SEPP ARH, the conditions of consent include a condition that requires dwelling numbers 12, 13, 14 & 15 to be dedicated to affordable rental housing for a period of 10 years.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. A Detailed Site Investigation has been undertaken by Australian Geotechnical Pty Ltd. The report, dated 1 March 2019, concludes that the site does not present a risk to human health and the environment, and that the site can be made suitable for the proposed development subject to the recommendations outlined within the report. Condition 22 of the proposed conditions of consent requires the recommendations contained in the report to be implemented.

• As the Old Northern Road is a classified road, the concurrence of Transport for NSW (“TNSW”) is required pursuant to s 138 of the Roads Act 1993. Further, concurrence is also required from TNSW for the proposed relocation of an easement that benefits TNSW, which relocation forms part of the development application. TNSW has granted concurrence by letter dated 1 September 2020, subject to a number of conditions being imposed on the grant of development consent. Those conditions have been incorporated in the agreed conditions of consent, by condition 4 of the consent.

• The matters in cll 101 and 102 of the State Environmental Planning Policy (Infrastructure) 2007 are satisfied in that, although access to the site cannot be achieved by another road, “the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development”, and the development is appropriately located and designed to ameliorate potential traffic noise and vehicle omissions. Additionally, an acoustic report dated 27 November 2018 confirms that cl 102(3) is complied with subject to certain recommendations, and those recommendations are required to be implemented by condition 21 of the proposed conditions of consent.

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court orders that:

1. Leave is granted for the Applicant to rely on:

1. the amended BASIX Certificate no. 983431M_02 as referred to in condition 1 of the conditions of consent at Annexure A; and

2. The Detailed Site Investigation and Dust Management Plan prepared by Australian Geotechnical Pty Ltd dated 1 March 2019.

2. The appeal is upheld.

3. Development application no. 1032/2019/JP for demolition of existing structures and construction of a multi dwelling development comprising of 15 x 2 storey townhouses and basement car parking at 70-72 Old Northern Road, Baulkham Hills is approved subject to the conditions in Annexure A.

……………………..

J Gray

Commissioner of the Court

Annexure A (1319951, pdf)

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Decision last updated: 17 September 2020