Wiser Capital Pty Ltd v The Hills Shire Council

[2019] NSWLEC 1085

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wiser Capital Pty Ltd v The Hills Shire Council [2019] NSWLEC 1085
Hearing dates:	Conciliation conference on 25 February 2019
Date of orders:	27 February 2019
Decision date:	27 February 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [ REF _Ref337207 \r \h 8] below
Catchwords:	DEVELOPMENT APPLICATION: four new residential flat buildings; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Sydney Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Wiser Capital Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: S Berveling (Applicant) Solicitors: Apex Lawyers (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/33097
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal made pursuant to s 8.11 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the deemed refusal of its development application 1984/2017/JP. As amended the application seeks consent for: site establishment works including clearing of vegetation and site excavation, and the construction of 4 x 8 storey residential flat buildings containing a total of 255 units over two levels of basement car parking accommodating 388 cars. The development is proposed at 17-21 Mason Road Box Hill encompassing Lot 68 DP11104, Lot 68 DP 655273 and Lot 69 DP6555516.

2. 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.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 19 July 2018. This conference was terminated as agreement was unable to be reached between the parties at that time. After the amendment of the proposed development, at the request of the parties, a further conciliation conference was listed and held on 25 February 2019. I presided over that conciliation conference.

4. At the second 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. The development application includes owners consent for the development application from the registered land owners.

2. The application has been notified in accordance with the relevant development control plan and the submissions have been considered.

3. The development is proposed under the provisions of the State Environmental Planning Policy (Sydney Growth Centres) 2006 (SEPP Growth Centres). The subject site is zoned R3 Medium Density Residential, R4 High Density Residential and SP2 infrastructure under Appendix 11: The Hills Growth Centre Precinct Plan of that instrument. Development for the purposes of a residential flat building is permissible with consent in the R4 High Density Residential zone.

4. I am satisfied that the development meets the requirements in clause 6.1 of SEPP Growth Centres as any public utility infrastructure that is essential for the proposed development is available or adequate arrangements have been made for that infrastructure to be available when required.

5. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard in SEPP Growth Centres. The development standard establishes a maximum height of 21m above natural ground, pursuant to cl 4.3: Height of Buildings in Appendix 11 of the instrument. The development, as proposed, exceeds the height standard by a maximum of 1.8 at the North- East corner of Block A.

6. The Applicant has filed a written variation request pursuant to cl 4.6 of Appendix 11, SEPP Growth Centres prepared by Don Fox Planning Pty Ltd, dated 22 November 2018. I have reviewed that request and in accordance with cl 4.6(4)(a) of SEPP Growth Centres, I am satisfied that:

1. The written request adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard. The grounds relied on by the applicant and accepted by the Council are that:

1. the height exceedance is in part a result of the slope of the subject site and the a desire to avoid variations or sets in the floor plate of the residential flat buildings;

2. despite the slope the north-south orientation of the buildings is an optimum orientation in comparison to an alternative east-west orientation;

3. the exceedance of height does not create a reduction in solar access internally or to adjoining properties;

4. the proposed maximum building heights are consistent with the desired future character of seven storeys being presented to a public space.

5. the proposed development demonstrates good urban design.

I am satisfied these grounds are sufficient.

2. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance. In particular: the proposed height variation is consistent with the objective to protect the amenity of adjoining development and land in terms of solar access to buildings and open space; to facilitate higher density development in centres and major transport routes while minimising impacts on residential, commercial and open space areas.

3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard. In particular: the proposed height variation is consistent with the objective to provide for the housing needs of the community in a high density environment; to provide a variety of housing forms and is not antipathetic to the achievement of objective (c) of the R4 High Density Residential zone.

7. The development is compliant with the remaining applicable development standards in Appendix 11, SEPP Growth Centres.

8. In accordance with State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, a design verification statement has been provided by a registered architect (Rowan Gietz: Reg No. 5089).

9. The application was lodged with a Detailed Contamination Assessment of the subject land prepared by Geotechnique Pty Ltd on 8 April 2014. The Council notes it is satisfied that this report addresses the precondition at cl 7 of State Environmental Planning Policy No 55—Remediation of Land. The recommendations of the report are captured in the consent conditions.

10. The subject land is bushfire prone land and is integrated development under s 91 of the EPA Act. It was referred to the NSW Rural Fire Services who provided a Bushfire Safety Authority and concurrence conditions which are incorporated in the attached conditions.

11. Under Sch 3 of State Environmental Planning Policy (Infrastructure) 2007, the development is classified as ‘traffic generating development’ as the development provides car parking for 200 or more motor vehicles. The development application was referred to the NSW Roads and Maritime Services (RMS). A response has been received from the RMS who raise no objection to the development.

12. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged for each block of the proposed residential flat buildings.

6. 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.

7. In making the orders to give effect to the agreement between the parties, 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is granted leave to rely on the following amended plans:

2. The Applicant’s written request pursuant to clause 4.6 of Appendix 11 of the State Environmental Planning Policy (Sydney Growth Centres) 2006 seeking a variation of the development standard for height of buildings set out at clause 4.3 is upheld;

3. The appeal is upheld.

4. Development consent is granted to Development Application No. 1984/2017/JP for site preparatory works and the construction of 4x 8 storey residential flat buildings containing 255 units (29x 1 bedroom, 168x 2 bedroom, 54x 3 bedroom and 4x 4 bedroom) over 2 levels of shared basement car parking accommodating 338 cars, with a swimming pool and landscaping on the land at 17-21 Mason Road, Box Hill (Lot 68 DP 11104, Lot 68 DP 655273 and Lot 69 DP 655516) subject to the condition of consent annexed hereto and marked “A”.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (399 KB, pdf)

Decision last updated: 01 March 2019