W N Developments Pty Ltd ATF 112 Windsor Road Unit Trust 89 690 813 461 v The Hills Shire Council

[2021] NSWLEC 1150

Land and Environment Court

New South Wales

Medium Neutral Citation:

W N Developments Pty Ltd ATF 112 Windsor Road Unit Trust 89 690 813 461 v The Hills Shire Council [2021] NSWLEC 1150

Hearing dates:

Conciliation conference on 17 March 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at annexure “A”.

(2) The appeal is upheld.

(3) Development Application DA 1267/2019/HA for torrens title subdivision and construction of a boarding house comprising two x two storey buildings containing 19 double boarding rooms (including 2 accessible rooms and 1 manager’s room) accommodating 38 boarders, and 10 at-grade car parking spaces (including 1 accessible space and 1 manager space), 4 motorcycle spaces and 4 bicycle spaces, remediation, construction of road, and dedication to Council, at Lot 102 DP 1231074 Windsor Road, Kellyville, is approved subject to the conditions at annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – boarding house development – State Environmental Planning Policy (Affordable Rental Housing) 2009 – character is compatible with the local area – agreement between the parties – conciliation conference – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Environmental Planning and Assessment Regulation 2000

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 (Infrastructure) 2007

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

The Hills Local Environmental Plan 2012 cll 4.1, 4.3

The Hills Local Environmental Plan 2019

Category:

Principal judgment

Parties:

W N Developments Pty Ltd ATF 112 Windsor Road Unit Trust 89 690 813 461 (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/161262

Publication restriction:

No

Judgment

1. COMMISSIONER: This class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by The Hills Shire Council (the Respondent) of Development Application No. 1267/2019/HA seeking consent for Torrens title subdivision and construction of a boarding house development comprising two (2) two-storey buildings containing a total of 19 double boarding rooms accommodating a total of 38 boarders, and one manager’s room on a site legally described as Lot 102 in DP 1231074, Windsor Road, Kellyville (the site).

2. The appeal was originally listed for hearing before me on 16-17 March 2021. However, at the commencement of the hearing, the Applicant filed a bundle of documents for which an adjournment was sought, and granted. Upon resumption of the hearing, the parties agreed that the amended plans and other documents contained in the bundle, and served subsequently, resolve all of the matters in contention between the parties.

3. After a further adjournment, the parties by consent sought for the matter to be re-allocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act) on the basis that parties had reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties.

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 17 March 2021.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [11].

7. At the outset it is helpful to explain that the application was lodged prior to the gazettal of The Hills Local Environmental Plan 2019 (THLEP 2019) on 15 January 2020, and the savings provision instructs that the application must be determined as if the THLEP 2019 had not commenced.

8. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed for the reasons that follow:

1. The site is located within an area zoned R3 Medium Density Residential, in which boarding house development is permitted with consent, and SP2 Infrastructure pursuant to The Hills Local Environmental Plan 2012 (THLEP).

2. The objectives of the R3 zone are as follows:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage medium density residential development in locations that are close to population centres and public transport routes.

3. The objectives of the SP2 zone are as follows:

•  To provide for infrastructure and related uses.

•  To prevent development that is not compatible with or that may detract from the provision of infrastructure.

4. Clause 4.3 of the THLEP sets a maximum height of buildings standard of 10m across the site, and the proposed development complies with the standard.

5. A minimum lot size of 700m² applies by operation of cl 4.1(3) of the THLEP and a plan of subdivision prepared by Bureau SRH dated 17 March 2021 provides allotments that are in excess of the minimum size.

6. The proposal is subject to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and I am satisfied that the standards set out at cl 30 of the SEPP ARH have been achieved.

7. I have also considered the design of the development, in accordance with cl 30A of the SEPP ARH, and I am satisfied that the proposed development is compatible with the adjoining multi-dwelling character of the local area evident to the north-west and south of the site.

8. A portion of the site is identified by both the Respondent and Transport for NSW (TfNSW) for acquisition to facilitate the future extension of Kennedy Avenue to form an intersection with Windsor Road. On the basis of the letter from TfNSW dated 31 January 2021, I am satisfied that the provisions of the State Environmental Planning Policy (Infrastructure) 2007 have been satisfied, and no objection is raised subject to conditions that are incorporated into Condition 1A.

9. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. It is agreed that a portion of the site, being the site of a former service station, is contaminated, as identified in the site validation report prepared by Parsons Brinkerhoff dated 12 May 2015. However, on the basis of the following, I am satisfied that the land will be remediated:

• Remediation Action Plan, prepared by WSP dated 3 March 2021.

• Relevant conditions of consent at Condition 28 and Condition 78.

10. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 989001M_02), prepared by SLR Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

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

10. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

11. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at annexure “A”.

2. The appeal is upheld.

3. Development Application DA 1267/2019/HA for torrens title subdivision and construction of a boarding house comprising two x two storey buildings containing 19 double boarding rooms (including 2 accessible rooms and 1 manager’s room) accommodating 38 boarders, and 10 at-grade car parking spaces (including 1 accessible space and 1 manager space), 4 motorcycle spaces and 4 bicycle spaces, remediation, construction of road, and dedication to Council, at Lot 102 DP 1231074 Windsor Road, Kellyville, is approved subject to the conditions at annexure “A”.

……………………

T Horton

Commissioner of the Court

Annexure A (292342, pdf)

Architectural Plans (8162746, pdf)

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Decision last updated: 26 March 2021