Land and Environment Court New South Wales Medium Neutral Citation: Integrated Clinical Oncology Network Pty Ltd v The Hills Shire Council [2021] NSWLEC 1737 Hearing dates: Conciliation Conference 26 November 2021 Date of orders: 1 December 2021 Decision date: 01 December 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. 587/2021/HA, lodged on 27 October 2020, for the construction of a temporary single storey building for use as an Oncology Treatment facility at Lot 400 in DP 1250792, also known as 11 Norbrik Drive, Bella Vista, Norwest Private Hospital, 11 Nobrik Drive, Bella Vista NSW 2153 is approved subject to the conditions in Annexure "A" to this Agreement Catchwords: DEVELOPMENT APPLICATION – temporary health services facility – amended plans – agreement between the parties – orders. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 The Hills Local Environmental Plan 2019, cll 4.3, 4.4, 4.6 Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Category: Principal judgment Parties: Integrated Clinical Oncology Network Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: P Lalich (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: HWL Ebsworth (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/133478 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Integrated Clinical Oncology Network Pty Ltd (Applicant) against the actual refusal of Development Application No. DA/587/2021/HA by The Hills Shire Council (the Respondent) on 21 April 2021. The development application seeks consent for construction of a temporary single storey building for use as an oncology treatment facility and ancillary car parking. The development is proposed at 11 Norbrik Drive, Bella Vista (Lot 200 DP 1222375). 2. 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 20 August 2021. The parties failed to reach agreement and on 28 September 2021 the conciliation was terminated, and the matter was listed for hearing. 3. By request of the parties the matter was listed for a further s 34 conciliation conference on 26 November 2021. I presided over this conciliation conference. The decision agreed upon by the parties is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment. 4. 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. By reference to the development application form filed with the Class 1 Application, Owner's consent has been given to the Applicant for lodgement of the Development Application. 2. The Hills Local Environmental Plan 2019 (LEP 2019) applies to the subject site. Pursuant to LEP 2019 the site is zoned B7- Business Park. The proposed development would be characterised as a "health services facility", within the meaning of the LEP 2019. Health services facilities are an innominate use and, as such, are permitted with consent in the zone. In determining the development application, I have had regard to the objectives of the zone. 3. Pursuant to cl 4.3 of LEP 2019 the maximum building height for the subject site is prescribed by reference to relative levels (RL's), and provides that the height must not exceed RL116 (in part) and RL108 (in part). The proposed building has a maximum height of RL 84.045, being below the permitted height limits for parts of the Site. It therefore complies with the height control. 4. Pursuant to cl 4.4 'Floor Space Ratio', LEP 2019 prescribes a maximum FSR standard for the development of 1:1. The Application does not comply with this development standard, but a written request to vary the development standard has been provided seeking a variation to the development standard. On the following basis I am satisfied that consent should be granted notwithstanding the contravention of the FSR development standard. 1. I am satisfied that the written request dated 25 November 2021, lodged pursuant to cl 4.6 of the LEP 2019, adequately establishes sufficient environmental planning grounds that justify the breach in the FSR development standard by demonstrating that the breach allows for a minor variation to the standard to facilitate a temporary use for the early provision of oncology facilities on the site, that the colocation of facilities with the existing hospital benefits patients and the community and the consistency of the development application with the objects of the EPA Act. 2. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that: firstly, the development will meet the underlying objectives of the standard notwithstanding the non-compliance; and secondly, the standard has been virtually abandoned by previous consents granted for Norwest Private Hospital and finally, that the standard will be abandoned in the proposed LEP amendment on public exhibition, which proposes a 3:1 FSR for the Site (see Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279). I am satisfied, for the reasons given in the written request, that the state of satisfaction required by cl 4.6(3)(a) is met. 3. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 4. The states of satisfaction required by cl 4.6 of LEP 2019 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control. 1. The application was notified in accordance with the relevant development control plan and I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. 1. 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)). 2. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. The Hills Shire Council, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the development consent to rely on the Amended clause 4.6 written request dated 25 November 2021. 2. The Respondent has uploaded the Amended clause 4.6 written request dated 25 November 2021 to the NSW Planning Portal and filed it with the Court. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. 587/2021/HA, lodged on 27 October 2020, for the construction of a temporary single storey building for use as an Oncology Treatment facility at Lot 400 in DP 1250792, also known as 11 Norbrik Drive, Bella Vista, Norwest Private Hospital, 11 Nobrik Drive, Bella Vista NSW 2153 is approved subject to the conditions in Annexure "A" to this Agreement ………………………… D M Dickson Commissioner of the Court Annexure A (179397, 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: 01 December 2021