Pearce Holdings (Aust) Pty Ltd v The Hills Shire Council [2021] NSWLEC 1042

Land and Environment Court New South Wales

Medium Neutral Citation: Pearce Holdings (Aust) Pty Ltd v The Hills Shire Council [2021] NSWLEC 1042 Hearing dates: Conciliation conference on 2, 16 and 23 December 2020 Date of orders: 27 January 2021 Decision date: 27 January 2021 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [11] Catchwords: MODIFICATION APPLICATION – delete certain conditions of consent relating to dedication of land and carrying out of works unrelated to proposed development – conciliation – 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) State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Contributions Plan No. 12 – Balmoral Road Release Area Category: Principal judgment Parties: Pearce Holdings (Aust) Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: C Gough (Solicitor) (Applicant) J Corridini-Bird (Solicitor) (Respondent)

Solicitors: Storey & Gough Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/265063 Publication restriction: Nil

Judgment 1. This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal of an application pursuant to s 4.55 of the EP&A Act to modify Development Consent No. 496/2018/HA (consent) granted by The Hills Shire Council (Council) on 15 May 2019 for the demolition of existing structures and construction of 15 multi-dwelling housing units and a four storey residential flat building comprising 20 units with basement car parking on the land being Lot 11 in DP 1245757 known as 6 McCausland Place, Kellyville (site). 2. On 2 December 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). 3. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the modification application and to amend the consent. 4. On 23 December 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 5. In essence the modification seeks the deletion and/or amendment of certain conditions of the consent which the Applicant said did not relate to the development the subject of the consent because they required dedication of land and the carrying out of works not as a consequence of the development nor authorised by a contributions plan in accordance with s 7.11 and s 7.13 of the EP&A Act. There is no change proposed to the form of the development the subject of the consent. 6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' agreement involves the Court exercising the function under s 8.9 of the EP&A Act to grant the application to modify the consent. The parties have identified the jurisdictional matters about which I need to be satisfied. I concur with the parties' submission that I should be satisfied as to such matters having regard to the documents which have been provided to the Court. 8. In particular, I note: 1. The consent as proposed to be modified is substantially the same development as the development for which the consent was originally granted as required by s 4.55(2) of the EP&A Act, there being no change to the form of the development. 2. The development as proposed to be modified will no longer require the dedication of land that is not identified in Contributions Plan No. 12 – Balmoral Road Release Area. 3. Matters such as cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, cl 28(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and State Environmental Planning Policy (Building Sustainability Index) BASIX 2004 were taken into account in the grant of the consent and there is no relevant change proposed in the modification application. 1. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 2. 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 modification application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 3. The Court orders: 1. The Applicant is granted leave to rely on the following plan: Plan Reference Drawn By Dated Plan of Subdivision of Lot 11 DP 1245757, Issue 1 Mitchell Keith Ayres 19/12//2020