Land and Environment Court New South Wales Medium Neutral Citation: Mills v Hills Shire Council [2020] NSWLEC 1492 Hearing dates: Conciliation conference on 11 August 2020, 1 and 28 September 2020 Date of orders: 15 October 2020 Decision date: 15 October 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) The applicant is granted leave to amend the development application and rely on the amended plans and documents nominated in Condition 1 of Annexure 'A' to this agreement. (2) The Applicant is to pay the Respondents cost thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000 within 30 days of these orders. (3) The Appeal is upheld. (4) Development Application 33/2020/HA which seeks consent for demolition of existing structures and the construction of two attached multi dwelling buildings with a total of eight (8) units comprising 1 x 2 bedroom dwelling , 7 X 3 bedroom dwellings (with units 2, 4 and 7 to be used as "affordable housing" in accordance with State Environmental Planning Policy (Affordable Rental Housing) 2009, and unit 8 is proposed to be capable of being adapted for persons with a disability), basement carparking for 14 cars, bin room, storage areas and associated landscaping, is approved subject to the conditions set out in Annexure "A" to this agreement. Catchwords: DEVELOPMENT APPLICATION – multi-unit residential development – affordable rental housing – 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 (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land The Hills Local Environmental Plan 2012 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (March 2020) Seniors Living Policy: Urban Design Guidelines for Infill Development Category: Principal judgment Parties: Mathew Mills (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/364027 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by The Hills Shire Council (Council) of Development Application No. 33/2020/HA (the DA). In exercising the functions of consent authority, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 1,543m2 allotment of land identified as Lot 4 in DP 501479, at 2 Marie Street, Castle Hill (the site). The DA, as originally submitted to Council on 5 July 2019, sought consent for demolition of existing structures and construction of two attached multi-unit residential buildings with a total of nine units, basement parking for 14 cars and associated landscaping. The DA was advertised and notified between 19 July 2019 and 9 August 2019. Six submissions were received at that time. 3. In response to concerns raised by residents and Council the Applicant submitted amended plans on 24 October 2019. The development in the amended application, which reduced the number of units from 9 to 8, is illustrated in the plans prepared by Smith & Tzannes architects, dated 23 October 2019 (the October 2019 plans). The DA as amended was also notified, between 6 and 27 November 2019. Four submissions were received. 4. The Applicant commenced these Class 1 proceedings in the Court on 19 November 2019, based on the October 2019 plans. The Council filed its Statement of Facts and Contentions (SOFC) on 18 February 2020 detailing 13 matters of contention. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 August 2020, 1 and 28 September 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference, at which I presided. 6. As a result of the discussions at the conciliation conference and in response to the matters referred to in the SOFC, further amended plans and additional information were submitted to Council and formed the basis of the final s34 agreement that was filed with the Court on 23 September 2020. 7. The main changes between the development proposal last exhibited, as illustrated in the October 2019 plans, and the development the subject of the s34 agreement, as illustrated in the plans dated 25 August 2020 (also prepared by Smith & Tzannes) are: 1. The floor plans of both residential buildings have been modified to provide more articulation, slightly larger areas of Private Open Space (POS) to all units and a larger Communal Open Space (COS) located between the buildings. 2. Unit 1, located closest to the street, has been reduced in size and its number of bedrooms decreased from four to three. Unit 6 has also been reduced in size, but retains three bedrooms. 3. The bin storage area has been relocated from within the street setback adjacent to the driveway to behind the building line adjacent to the pedestrian entry path. 1. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA, as amended, subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional matters of relevance in these proceedings. Those matters and how they are satisfied are set out in paragraphs 9 to 11 below. Satisfaction of jurisdiction 1. In relation to The Hills Local Environmental Plan 2012 (THLEP): 1. The site is zoned R3 Medium Density Residential Zone (R3 Zone) and the proposed multi dwelling housing development is permissible with consent. 2. The objectives of the R3 Zone, found in the Table at the end of Part 2 of THLEP, have been considered and are met by the proposal. 3. The development does not exceed the 9m maximum height of buildings development standard at cl 4.3. and satisfies the objectives of this standard. No floor space ratio (FSR) development standard applies to the site. 4. The consent authority has taken into account the matters for consideration in cl 7.2 for the earthworks associated with the development and concluded the development is satisfactory in that regard. 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies and is satisfied as follows: 1. Clause 10(1)(a) of Part 2, Division 1 applies to development for the purpose of multi dwelling housing if the development concerned is permissible with consent under another environmental planning instrument. Multi dwelling housing is permissible with consent in Zone R3 Medium Density Residential pursuant to THLEP and the development application satisfies this clause. 2. Clause 10(2) of Part 2, Division 1 - the proposed development is in an accessible area within the meaning of cl 4(1) of SEPP ARH. 3. Clause 13 of Part 2, Division 1 – the consent authority is satisfied that the floor space ratio requirements pursuant to this clause have been satisfied. 4. Clause 14(1), (b), (c) (d) & (e) & 14(2)(a) & (b) of Part 2, Division 1 – the consent authority is satisfied that the proposed development is satisfactory having regard to site area, deep soil, landscape area, solar access, parking and dwelling size requirements under this section. 5. Clause 15 of Part 2, Division 1 - the proposed development is consistent with the Senior Living Policy: Urban Design Guidelines for Infill Development, published by the Department of Infrastructure, Planning and Natural Resources in March 2004. 6. Clause 16A of Part 2, Division 1 – the proposed development is compatible with the character of the local area. 7. Clause 17 of Part 2, Division 1 – Condition 6 of the conditions of consent included as Annexure A to the s34 agreement requires units 2, 4 and 7 to be dedicated and used for the purposes of affordable rental housing as defined in the SEPP (ARH) for a period of 10 years in accordance with cl 17. 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requires consideration of any contamination and associated remediation. Given the existing and proposed residential use, the Council considers there is no potential for contamination, and the site is therefore suitable for the proposed development with no further action needed. Condition 75 of the conditions of consent at Annexure A to the s34 agreement is, however, included to monitor and, if necessary, address any contamination should it be discovered during site works. 2. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a revised Certificate number 1025970M_02 dated 06 July 2020 has been provided demonstrating compliance with the BASIX SEPP. 3. 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. 4. The Court orders: 1. The applicant is granted leave to amend the development application and rely on the amended plans and documents nominated in Condition 1 of Annexure 'A' to this agreement. 2. The Applicant is to pay the Respondents cost thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000 within 30 days of these orders. 3. The Appeal is upheld. 4. Development Application 33/2020/HA which seeks consent for demolition of existing structures and the construction of two attached multi dwelling buildings with a total of eight (8) units comprising 1 x 2 bedroom dwelling , 7 X 3 bedroom dwellings (with units 2, 4 and 7 to be used as "affordable housing" in accordance with State Environmental Planning Policy (Affordable Rental Housing) 2009, and unit 8 is proposed to be capable of being adapted for persons with a disability), basement carparking for 14 cars, bin room, storage areas and associated landscaping, is approved subject to the conditions set out in Annexure "A" to this agreement. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (355838, pdf) plan (337863, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2020