Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1

Land and Environment Court New South Wales

Medium Neutral Citation: Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1 Hearing dates: 4, 5 October 2012 Decision date: 04 January 2013 Jurisdiction: Class 1 Before: Craig J Decision: 1. Appeal allowed. 2. Modify development consent 872/2011/JP granted on 10 November 2011 for construction of an educational establishment - Kindergarten to Year 12 - including associated parking, playing areas and landscaping for land being Lot 3 in DP 32271 and known as 57-69 Samantha Riley Drive, Kellyville in the following manner: (i) Condition 1 is amended by deleting reference to Drawing No DA101-Site Plan-Revision F-Dated 09/09/2011 and inserting reference to Drawing No DA101-Site Plan-Revision H-Dated 24/1/12. (ii) Insert after Condition 1 the following Condition: 1A - the references to "future emergency vehicle access" and "future pedestrian access" to the local road in plans DA114-Site Parking Plan-Rev B and Plan LA01-Rev C are to be deleted. (iii) Delete Conditions 37 and 55(iv). (iv) Delete Condition 98. (v) Substitute a new Condition 98 in the following terms: 98. The local road must be built in accordance with this development consent within 6 months from the date of the first occupation certificate issued in respect of the Site and before any further occupation certificate is issued. However, nothing in this consent requires the area of land occupied by that road to be dedicated free of cost. (vi) Add the following Condition: 107. A barrier/No entry sign must be provided at the eastern end of the local road until such time as it is connected to the road that will service the development approved by the Land and Environment Court at 71-83 Samantha Riley Drive as required by Condition 32 in Annexure A to the Court's judgment in Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154. 3. No order as to costs to the intent that each party should pay its own costs. 4. Exhibits may be returned. Catchwords: APPEAL - modification of development consent pursuant to s 96(1A) of The Environmental Planning and Assessment Act 1979 - condition required school to dedicate public road to council free of cost - whether appropriate to modify consent by deleting condition - no change of substance effected by deletion of condition - whether condition lawfully imposed - absence of identified need for new road pursuant to s 94 of Environmental Planning and Assessment Act 1979 - absence of identified requirement in contributions plan pursuant to s 94AE of Environmental Planning and Assessment Act 1979 - relevant nexus required by s 94(1) of Environmental Planning and Assessment Act 1979 not demonstrated - condition in contravention of s 94B(1) of Environmental Planning and Assessment Act 1979 - granting of application not denied by reason of the conduct of the applicant in obtaining a consent and acting upon it - no discretionary basis upon which to deny the modification sought - appeal allowed Legislation Cited: Environmental Planning and Assessment Act 1979