Land and Environment Court New South Wales Medium Neutral Citation: Baxter v The Hills Shire Council [2022] NSWLEC 1119 Hearing dates: Conciliation conference on 1 March 2022 Date of orders: 16 March 2022 Decision date: 16 March 2022 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: 1) The appeal is upheld. 2) Development consent is granted to Development Application 228/2020/JP for a concept proposal pursuant to section 4.22 of the Environmental Planning and Assessment Act 1979 for a mixed-use development comprising an indicative building layout and envelopes for five blocks (including setbacks, maximum building height, maximum permissible gross floor area), site access arrangements, two levels of parking containing 517 car parking spaces, associated landscaping, two vegetation conservation zones and stormwater works together with a detailed proposal for Stage 1 comprising site preparation works including tree removal and bulk earthworks at 328-330 Annangrove Road, Rouse Hill, subject to conditions contained in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, s 7.7 Biodiversity Conservation Regulation 2017, cl 7.2 Environmental Planning and Assessment Act 1979, ss 8.7, 4.16, 4.22 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s34 State Environmental Planning Policy (Infrastructure) 2007, Sch 3, cl 104 State Environmental Planning Policy no 55 – Remediation of Land, cl 7 Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean-River (No 2 1997), cl 4 The Hills Local Environmental Plan 2012, cll 4.3, 4.4 The Hills Local Environmental Plan 2019, cl 1.8 Water Management Act 2000, s 91 Category: Principal judgment Parties: Thomas Baxter (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: M. Staunton(Applicant) P. Hudson (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/088386 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as the result of the Hills Shire Council's refusal of Development Application 228/2020/JP, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. This application originally sought consent for a concept proposal for a mixed use development including: 1. An indicative building layout and envelopes for four blocks 2. 445 car parking spaces 3. Landscaping, stormwater works, site preparation works including the removal of trees and earthworks. 1. Subsequent amendments have resulted in the application currently before the Court (amended application) which seeks consent for a concept proposal for a mixed-use development including: 1. An indicative building layout and envelopes for five blocks 2. 517 car parking spaces 3. Two conservation zones 4. Landscaping, stormwater works, site preparation works including the removal of trees and earthworks 1. The site is located at Lot 12 DP 833069 and Lot 34 DP 834050, 328-330 Annangrove Road, Rouse Hill. 2. The Court arranged an initial conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 August 2021, and subsequently on 17 September, 9 October, and 15 October 2021. This initial conference was terminated, but due to ongoing negotiations a further conciliation conference was held on 1 March 2022. I presided over this final conference. 3. At this conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. 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 one 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and from this I note the following: 5. Owner's consent has been given by ABAX Contracting Pty Ltd for lodgement of the Development Application. 6. The amended development application is defined as a concept application under s4.22(2) of the EPA Act. 7. Section 7.7(2) of the Biodiversity Conservation Act 2016 (BC Act) states that if a proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity assessment report. The amended application proposes clearing of native vegetation on land included in the Biodiversity Values Map, exceeding the biodiversity offsets scheme threshold pursuant to Biodiversity Conservation Regulation 2017 (BC Regulation) cl 7.2. Subsequently, in accordance with BC Act s 7.7(2), a Biodiversity Development Assessment Report (BDAR) has been prepared and includes several mitigation measures. Compliance with these measures is incorporated in the conditions of consent. 8. The BDAR further recommends a Vegetation Management Plan, which forms part of the amended application and provides measures for maintaining the two conservation areas proposed on the site. Compliance with these recommendations is incorporated into the conditions of consent. 9. The BDAR states that with the implementation of the proposed mitigation measures and offsetting, the impacts of the proposed development are limited, and the retained vegetation will be subject to active management. The requirements for assessment in the BC Act and BC Regulation are therefore satisfied. 10. The proposed development is defined under Sch 3 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) as 'traffic generating development'. Pursuant to cl 104 of SEPP infrastructure, the Roads and Maritime Services (RMS) provided comments on 16 September 2019, which have been taken into consideration in the determination of this development application. 11. As the proposed development is within 30 metres of Second Ponds Creek, it is a controlled activity pursuant to s 91 of Water Management Act 2000. In accordance with the requirements of this Act, the Natural Resources Access Regulator issued general terms of approval on 16 October 2020. 12. State Environmental Planning Policy no 55 – Remediation of Land (SEPP 55) cl 7 (1) requires the consent authority to consider whether the land is contaminated and, if so, be satisfied that it is suitable in its contaminated state (or will be suitable, after remediation) for the intended development. A Preliminary Site Investigation was prepared by GeoEnviro Consultancy, dated January 2019, that concludes the site can be made suitable for the proposed development. Conditions 11, 42 and 53 have been imposed in accordance with this investigation, and I accept that the site will, after remediation, be suitable for the proposed development. 13. Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2 1997) (SREP 20) applies to the land, and under cl 4(1) requires consideration of how the Hawkesbury Nepean River system will be protected from impacts caused by the development. The parties have identified that the only likely relevant impacts of the development relate to stormwater discharge, and to that end, stormwater plans have been included in the amended application. I am satisfied that these plans, along with the conditions of consent will adequately protect the waters of the Hawkesbury Nepean River in terms of both stormwater quantity and quality. 14. The Draft State Environmental Planning Policy (Environment) relates to the protection and management of the natural environment with the aim of simplifying the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property. This draft SEPP combines several existing SEPPs, some of which relate to this development. All relevant SEPPs are considered separately in this judgment, and I am satisfied that the proposed development addresses the matters raised in this draft SEPP through the provision of ecological assessments and stormwater plans. 15. The development application was lodged on 23 August 2019 and is subject to the version of The Hills Local Environmental Plan 2012 (THLEP 2012) that was effective between 28 February and 30 October 2019. The THLEP 2012 was subsequently amended, however pursuant to cl 1.8 of the amended The Hills Local Environmental Plan 2019 (THLEP 2019), a development application that has been made but not determined prior to 6 December 2019 is to be determined as if the amended THLEP 2019 does not exist. 16. The site is predominantly zoned B6 Enterprise Corridor. A portion of the site is zoned SP2 Infrastructure (stormwater management system) and SP2 (local road widening), however no part of the development proposal is situated within the SP2 zones. The proposed uses of 'food and drink premise' and 'neighbourhood shops' are permissible with consent within the B6 zone. 17. Clause 4.3(2) of THLEP 2012 establishes a maximum building height of 16m, which the proposed development does not exceed. 18. Clause 4.4(2) of THLEP 2012 establishes a maximum floor space ratio of THLEP 2012 of 1:1, which the proposed development also does not exceed. 19. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 20. 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. 21. The Court notes: 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 Development Application 228/2020/JP in accordance with the documents per the documentation below: Plan name Drawing Number Revision Date Prepared by Amended Architectural Plans Amended ground floor plan DA-102 9 03.11.21 Leffler Simes Pty Ltd Area schedule 1 29.11.21 Leffler Simes Pty Ltd Amended earthworks plan Bulk Earthworks Plan 030037EW3 F 23.02.22 Robert Moore and Associates Pty Ltd Amended Stormwater Plan Concept Stormwater Management Scheme 030037 SWS3 H 17.02.22 Robert Moore and Associates Pty Ltd Amended Reports Addendum Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 17 February 2022 Vegetation Management Plan prepared by Cumberland Ecology dated 21 February 2021 Biodiversity Development Assessment Report prepared by Cumberland Ecology dated 18 February 2022 1. The Applicant uploaded the amended development application documents listed above on the NSW planning portal on 1 March 2022. 2. That the Applicant subsequently filed the amended development application with the Court on 1 March 2022. 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application 228/2020/JP for a concept proposal pursuant to section 4.22 of the Environmental Planning and Assessment Act 1979 for a mixed-use development comprising an indicative building layout and envelopes for five blocks (including setbacks, maximum building height, maximum permissible gross floor area), site access arrangements, two levels of parking containing 517 car parking spaces, associated landscaping, two vegetation conservation zones and stormwater works together with a detailed proposal for Stage 1 comprising site preparation works including tree removal and bulk earthworks at 328-330 Annangrove Road, Rouse Hill, subject to conditions contained in Annexure 'A'. ………………………. E Washington Acting Commissioner of the Court Annexure A (269917, 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: 16 March 2022