Urban Revolutions Pty Ltd v The Hills Shire Council

[2021] NSWLEC 1725

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Revolutions Pty Ltd v The Hills Shire Council [2021] NSWLEC 1725

Hearing dates:

Conciliation conference held on 22 November 2021

Date of orders:

25 November 2021

Decision date:

25 November 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The orders of the Court are at [21]

Catchwords:

DEVELOPMENT APPLICATION – boarding house – consistency with character and streetscape – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 30, 30A

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land, cl 7

The Hills Local Environmental Plan 2012, cl 1.8A, 2.3

Texts Cited:

Draft State Environmental Planning Policy (Housing) 2021

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Urban Revolutions Pty Limited (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
T To (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
The Hills Shire Council (Respondent)

File Number(s):

2021/175277

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the actual refusal of Development Application (DA) 683/2020/HA by The Hills Shire Council (hereafter the Council), which as amended, seeks the construction of a 23 room boarding house on Lot 1 DP 609626, also known as 36 Kathleen Avenue, Castle Hill (hereafter the site).

2. The DA was submitted to Council on 16 November 2019, which was internally assessed and refused on 4 August 2020.

3. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams.

5. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the DA that contextualise the site.

6. The site is approximately 1047m² in area. The site has its primary frontage to Kathleen Avenue. The surrounding area exhibits variable size and design residential developments.

7. The Council agreed for the applicant to amend the plans and documents, that support the amended DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

8. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and resident concerns have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 683/2020/HA, with conditions.

9. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 683/2020/HA, subject to conditions in Annexure ‘A’.

10. The parties identified the jurisdictional prerequisites of the: State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55); State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Draft State Environmental Planning Policy (Housing) 2021 (SEPP Housing); and The Hills Local Environmental Plan 2012 (THLEP). In addition, the relevant requirements of The Hills Development Control Plan 2012 (THDCP) are considered in the merit assessment.

11. In compliance with the requirements of SEPP 55, based on the historical residential use of the site, Council explains that, together with the conditions of consent, the site is deemed suitable for the proposed development, which addresses the requirements of cl 7.

12. In compliance with the requirements of SEPP ARH, the proposed boarding house, is supported by amended plans and conditions of consent. The parties agree that the proposed development, as amended, is compatible with the surrounding character and provides sufficient amenity to future boarders. The proposed boarding house complies with the relevant standards of the SEPP ARH. Specifically, the building design, landscaping and retention of the significant trees is compatible with the local area, and consistent with cl 30A. The proposed boarding rooms provide amenity and are designed to address the requirements of cl 30.

13. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.

14. The SEPP Housing was exhibited between 31 July and 29 August 2021, and pursuant to s 4.15(1)(a)(ii) of the EPA Act, is a relevant consideration. The parties agree that the (draft) requirements of the SEPP Housing are addressed by the proposed development, which remains permissible with consent.

15. The parties agree that the THLEP (2012) is the relevant planning legislation for consideration, being operable at the date the DA was submitted to Council, and saved, pursuant to cl 1.8A(1). The site is zoned R3 Medium Density Residential, and pursuant to cl 2.3 of the THLEP, the proposed development is permissible with consent. The parties agree that the objectives of the (R3) zone are appropriately addressed. The proposed development satisfies the relevant standards of the THLEP.

16. The parties agree that the relevant requirements of the THDCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the THDCP. In response to the notification for the original DA, the submission received by Council was considered in the merit assessment. The amended plans and supporting documents, together with conditions of consent satisfactorily address the concerns of the resident.

17. Based on the amended plans and supporting documents to the DA, the grounds for refusal of the DA are explained to the Court as resolved to the satisfaction of the parties. The parties explain that there are no jurisdictional impediments to making of the agreement or for the Court in making the orders, as sought. The Council has undertaken the appropriate merit assessment of the proposed development.

18. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 683/2020/HA should be granted, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

19. 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.

20. The Court notes:

1. That The Hills Shire Council as the relevant consent authority has, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 consented to the following amendments to development application DA 683/2020/HA, and the BASIX certificate:

DRAWING NO	DESCRIPTION	REVISION	DATE
A.000	Cover Page	H	20/08/2021
A.001	Site and Roof Plan	H	20/08/2021
A.005	Soil Excavation Plan & Fill Plan	F	20/08/2021
A.008	Tree Protection Plan	C	20/08/2021
A.009	Soil Excavation Plan	B	20/08/2021
A.100	Basement & Ground Floor Plan	J	20/08/2021
A.110	First & Second Floor Plan	G	20/08/2021
A.120	Roof Plan	H	20/08/2021
A.200	Elevations	F	20/08/2021
A.201	Elevations	E	19/08/2021
A.210	Street View	D	20/08/2021
A.211	Perspectives	C	20/08/2021
A.300	Section	H	20/08/2021
A.301	Detail Plan – Proposed Driveway	C	20/08/2021
A.600	Colour and Materials Schedule	A	17/07/2019
A.700	Side Retaining Wall Plan	B	09/08/2021
A.601	Fencing Plan	A	09/08/2021
DDA.100	Disabled Access and Mobility Floor Plans	K	20/08/2021
F.100	Fire Evacuation Plan	K	20/08/2021
F.200	Fire Evacuation Plan	E	14/04/2020
L.100	Landscape Plan	G	20/08/2021

2. The applicant has uploaded the amended application on the NSW planning portal on 17 and 22 November 2021.

3. That the applicant has subsequently filed the amended application with the Court on 22 November 2021.

21. The Court orders that:

1. The appeal is upheld.

2. Development Application DA 683/2020/HA for the construction of a boarding house containing 23 rooms with a basement carpark and associated landscaping at 36 Kathleen Avenue, Castle Hill is approved subject to conditions of consent in Annexure 'A'.

3. The applicant is to pay the respondents costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $6,500 within 28 days.

…………………………

Sarah Bish

Commissioner of the Court

(Annexure A) (285622, pdf)

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Decision last updated: 25 November 2021