Mogul Stud Pty Ltd v The Hills Shire Council [2021] NSWLEC 1607

Land and Environment Court New South Wales

Medium Neutral Citation: Mogul Stud Pty Ltd v The Hills Shire Council [2021] NSWLEC 1607 Hearing dates: Conciliation conference on 1 September 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. 407/2019/JP is modified in the terms set out in Annexure "A". (3) Development Consent No. 407/2019/JP as modified by the Court is set out at Annexure "B". Catchwords: APPEAL – mixed use development – modification application – conciliation conference – agreement reached Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9 Environmental Planning and Assessment Regulation 2000, cl 121B Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Mogul Stud Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: F Rourke (Solicitor) (Applicant) A Seton (Solicitor) (Respondent)

Solicitors: Allens (Applicant) Marsdens Law Group (Repondent) File Number(s): 2021/183097 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal concerns an application to modify a development consent granted by the Land and Environment Court on 12 March 2020 for the construction of a mixed-use development comprising a major supermarket, a mini major retailer, 19 specialty stores and 12 non-retail tenancies, with associated areas, landscaping, signage and parking. The modification application seeks changes to the internal configuration of the proposed building, as well as changes to the conditions of consent to reflect the design changes and as well as changes to conditions concerning the hours of operation, the use of the loading docks and the operation of trolleys. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The application the subject of the appeal seeks to modify the development the subject of the development consent by the reconfiguration of the basement level, reconfiguration of the services and waste storage building at the north-western corner of the site, widening of the driveway to the east and south, shopfront improvement, changes to facades, relocation of the medical centre lobby, revised block layout and the addition of mezzanine floors to shops 23, 24, and 25. It also seeks to modify the parapet height, increase the lift overrun height, make changes to signage, lower the loading dock level and make changes to the central piazza. The modifications sought also extend to the reconfiguration and extension of the Level 1 car park and amendments to conditions of consent concerning the RMS requirements for stormwater drainage, landscape requirements, irrigation of landscaping, trolley management, s 7.11 contributions, delivery of goods and trading hours for the mini-major retailer, which will now be an ALDI supermarket. 3. The modification application was initially made to the respondent on 7 April 2021, and was amended on 27 April 2021 to reflect the fact that the modification application is made pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.56(1) of the EPA Act. 4. 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 1 September 2021 and was subsequently dealt with by Online Court on 20 and 28 September 2021. I presided over the conciliation conference. 5. Following the 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 was acceptable to the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.56 of the EPA Act. 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, for the following reasons: * Quantitatively, the modified development does not differ significantly from the numerical aspects of the development as approved. There is a slight increase in the gross floor area, from 10 635m2 to 10 777m2, and the FSR remains compliant with the relevant development standard. There is a reduction in business (non-retail) area and a subsequent reduction in car parking spaces. * Qualitatively, the modified development will largely retain the building form and presentation approved by the grant of development consent. The proposed modifications are principally contained within the building envelope, and change the external design only in minor respects. 1. The modification application was notified by Council between 5 May 2021 and 7 June 2021 in accordance with s 4.56(1)(b) and (c) of the EPA Act. In response to the notification of the application, there were no submissions received. 2. 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)). 3. In making the orders to give effect to the agreement between the parties, 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 ss 4.56(1A) and 4.15(1) of the EPA Act. 4. The Court notes: 1. The Hills Shire Council as the relevant consent authority has agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the application for modification of Development Consent No. 407/2019 granted by the Court on 12 March 2020. 2. The Applicant uploaded the amended modification application on the NSW planning portal on 6 October 2021. 3. The Applicant filed the amended modification application with the Court on 6 October 2021. 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. 407/2019/JP is modified in the terms set out in Annexure "A". 3. Development Consent No. 407/2019/JP as modified by the Court is set out at Annexure "B".