WSDC Box Hill Primitus Development Pty Ltd v The Hills Shire Council

[2023] NSWLEC 1764

Land and Environment Court

New South Wales

Medium Neutral Citation:

WSDC Box Hill Primitus Development Pty Ltd v The Hills Shire Council [2023] NSWLEC 1764

Hearing dates:

Conciliation conference on 24 November 2023

Date of orders:

13 December 2023

Decision date:

13 December 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, modification application DA 846/2016/JP/A for the erection of a residential flat complex at 13 Terry Road, Box Hill, is modified in the terms in Annexure A.

(3) The terms of the consolidated Development Consent No DA 846/2016/JP are set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – residential apartment development – residential flat building in R3 Medium Density Residential zone and R4 High Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cl 115

Environmental Planning and Assessment Regulation 2021, ss 29, 102, 113, Dictionary

Land Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, Pt 3, cll 29, 30

The Hills Local Environmental Plan 2019, cll 4.3, 4.4

Texts Cited:

NSW Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

WSDC Box Hill Primitus Development Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/215622

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by The Hills Shire Council (the Respondent) of Modification Application No 846/2016/JP/A seeking to modify development consent DA 846/2016/JP, granted by the Sydney West Joint Regional Planning Panel on 1 December 2016 (the original consent).

2. The original consent granted consent for the demolition of existing structures and construction of a part 4, part 7 storey residential flat building containing 121 units and basement carparking at 13 Terry Road, Box Hill.

3. The Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 (LEC Act) on 24 November 2023, at which I presided.

4. At the conciliation conference, the parties agreed certain amendments that, in the view of the Respondent at the commencement of proceedings, were capable of resolving the matters in contention, subject to the provision of further detail that necessitated the further amending of plans and other documents, and for which I granted an adjournment.

5. On the basis of those amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 1 December 2023.

7. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement.

8. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [5].

9. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

10. Firstly, 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 form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the following reasons:

1. In general terms, the modification application is for a residential apartment development in substantially the same form and scale as the development the subject of the original consent.

2. Quantitatively, there is a reduction in the number of apartments, from 121 to 114, and the number of car parking spaces on site, a minor reduction in communal open space, and in site area due to the dedication of land for road widening. The result is a residential density of the same order, within a built form envelope that is virtually identical but for an increase in height due to an increase in the floor-to-floor dimension, and amendments to balconies.

3. Qualitatively, the modification application is for two residential flat buildings in substantially the same form and scale as originally approved, amended to accommodate road widening greater than originally proposed due to finalisation of the road design. The road widening is given effect by the dedication of land that has the consequence of reducing the site area.

11. The modification application was notified by the Respondent between 30 May 2023 and 20 June 2023 in accordance with s 4.55(1A)(c) of the EPA Act. In response to the notification of the application, no submissions were received.

12. Pursuant to s 4.55(3) of the EPA Act, I have considered those issues at s 4.15 of the EPA Act that are of relevance to the proposal, and I note the following:

1. The site is located partly in the R3 Medium Density Residential zone, and partly in the R4 High Density Residential zone according to The Hills Local Environmental Plan 2019 (THLEP) in which residential flat buildings are permitted with consent. A portion of the site is also zoned SP2 Infrastructure in which Roads are permitted without consent.

2. The maximum allowable height is 21m under cl 4.3 of THLEP. The original consent was for a maximum height of 21.8m above existing ground level. The development as proposed to be modified is 22.9m in height.

3. The site is legally described as Lot 122A in DP 11104. The original consent comprised consent for subdivision of the site into two Lots. The modification application now proposes to modify the area of Lot 1 for the purpose of road widening, which has the effect of reducing the site area that is, in part, the reason for a change in the floor space ratio (FSR) resulting from the development. The maximum FSR permitted under cl 4.4 of THLEP is 2:1. A floor space ratio of 1.9:1 is proposed.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. The provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) apply to the site. The modification application proposes amendments to the stormwater drainage on the site from that proposed in the original consent.

14. I have considered those matters required to be considered at s 6.6(1) of the Biodiversity and Conservation SEPP. On the basis of the Stormwater Concept Plans prepared by Telford Civil, and letter by the same author dated 28 November 2023, I am satisfied the development ensures the effect on the quality of water entering public waterways will be as close as possible to neutral or beneficial, and the impact on water flow will be minimised, pursuant to s 6.6 of the Biodiversity and Conservation SEPP.

15. In particular, I note MUSIC water quality modelling demonstrates a reduction in annual average pollution export loads from the site, consistent with The Hills Shire Council environmental targets, such as: 85.65% of total suspended solids (minimum 85% required), 76.43% of Total Phosphorus (minimum 65% required), 55.87% of Total Nitrogen (minimum 45% required) and 99.41% reduction of Gross Pollutants (minimum 90% required). The water quality targets are met by using water sensitive urban design elements such as Stormfilter cartridges, Filtration baskets & Rainwater tank / Water retention & re-use for irrigation.

16. In considering those matters at s 6.7(1) of the Biodiversity and Conservation SEPP as are relevant to the modification application, I am satisfied, pursuant to s 6.7(2), that the direct, indirect or cumulative impact on certain animals or vegetation will be kept to a minimum when carrying out the development, that it will not have an adverse impact on aquatic reserves and that erosion and sedimentation will be minimised.

17. I note the amount of stormwater or run-off leaving the site is not proposed to increase, due to location of on-site detention, modelled using DRAINS software, to allow the flow of the post-development scenario to be limited to the flow of the pre-development scenario, for all storm events (1-year ARI to 100-year ARI storm).

18. As result of all of the above measures, the effect on the quality of water entering a natural waterbody will be beneficial, and the impact on water flow in a natural waterbody will be minimised.

19. On the above basis, I am also satisfied the development will not release pollutants that would have an adverse impact on water quality in a watercourse and would not have an adverse impact on flood waters in riverine ecosystems, pursuant to s 6.8(2) of the Biodiversity and Conservation SEPP.

20. I have also considered the likely impact of the proposal on recreational land uses in the relevant catchment, and whether the proposal will maintain or improve public access to certain foreshores without imposing an adverse impact, in accordance with s 6.9 of the Biodiversity and Conservation SEPP. I am satisfied that the site is sufficiently distant from recreational land uses that it will maintain the public access currently afforded in a manner consistent with s 6.9(2)(a), being the sole relevant provision about which satisfaction is required.

21. As I have formed an opinion of satisfaction in respect of those matters at ss 6.6, 6.7, 6.8 and 6.9, I conclude the modification application is not likely to impose an adverse impact on downstream local government areas, and so consultation of a kind required by s 6.10 of the Biodiversity and Conservation SEPP is not required.

State Environmental Planning Policy (Sustainable Buildings) 2022

22. A BASIX Certificate (Certificate No. 674075M_02 dated 17 March 2023) accompanies the application, prepared by Taylor Smith Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that, notwithstanding its repeal, continues to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022.

Environmental Planning and Assessment Regulation 2021

23. In respect of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), I note the modification application is accompanied by the written consent of the owner of the land.

24. Section 102 of the EPA Regulation prescribes the form of statement to be provided by a qualified designer where such a statement was a requirement of the original development application, as was the case here. The statement required by s 102(2) is in virtually identical terms to that required by s 29 of the EPA Regulation, but, where the qualified designer is not the author of the original development, verification that the modification does not diminish or detract from the design quality of the original development, nor compromise the design intent of the original development, must be sought from the relevant design review panel, and not the author of the statement (s 102(4)).

25. While the Respondent has a Design Review Panel, it is not constituted in accordance with Pt 3 of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65), and so advice is not required to be sought.

26. Clause 29 of SEPP 65 is invoked by s 102 of the EPA Regulation, or cl 115 as it was in the Environmental Planning and Assessment Regulation 2000, as it relates to the modification of development consents.

27. I am assisted by the design verification statement prepared by Mr John Baker of BKA Architecture, in respect of those matters to be taken into consideration at cl 29(2) of SEPP 65, and I am satisfied Mr Baker is a qualified designer as defined in the Dictionary of the EPA Regulation, being a person registered as an architect in accordance with the Architects Act 2003.

28. On the same basis I am also satisfied that adequate regard has been had to the design quality principles, and the objectives specified in the Apartment Design Guide for the relevant design criteria, pursuant to cl 30(2) of SEPP 65.

Rural Fires Act 1997

29. While the site was not identified as bushfire prone land at the time of the original consent, the parties agree the site is now identified as such.

30. A Bushfire Safety Authority is not required, pursuant to s 100B of the Rural Fires Act 1997, as the modification application does not propose subdivision (subcl (1)(a)), and the development is not for a special fire protection purpose (subcl (1)(b)). However, the modification application is accompanied by a Bushfire Protection Assessment, prepared by 14 November 2023. I note its recommendations are incorporated in the proposed conditions of consent.

Conclusion

31. The original consent was granted by the Respondent on 5 November 2020. I have considered the reasons given by the Respondent for the grant of the consent that is sought to be modified, in accordance with s 4.55(3) of the EPA Act, and I find no reasons that would preclude the modification of the original consent.

32. 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)).

33. 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.

34. The Court notes that:

1. The Respondent, as the relevant consent authority has agreed, under s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Modification Application DA 846/2016/JP/A seeking to modify Development Consent DA 846/2016/JP.

2. The applicant filed the updated plans and material with the court on 30 November 2023.

Orders

35. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, modification application DA 846/2016/JP/A for the erection of a residential flat complex at 13 Terry Road, Box Hill, is modified in the terms in Annexure A.

3. The terms of the consolidated Development Consent No DA 846/2016/JP are set out in Annexure B.

T Horton

Commissioner of the Court

215622.23 Annexure A

215622.23 Annexure B

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Decision last updated: 13 December 2023