Hunters Hill Ventures Pty Ltd v Hunters Hill Council [2016] NSWLEC 1614

Land and Environment Court New South Wales

Medium Neutral Citation: Hunters Hill Ventures Pty Ltd v Hunters Hill Council [2016] NSWLEC 1614 Hearing dates: 29 November 2016 Date of orders: 24 February 2017 Decision date: 20 December 2016 Jurisdiction: Class 1 Before: Dickson, C Decision: Orders at [93] Catchwords: DEVELOPMENT APPEAL: Pursuant to S97(1) – no agreement at conciliation – residential amenity impact – childcare centre – parking – pedestrian access – resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 Zhang v Canterbury City Council [2001] NSWCA 167 Texts Cited: Roads Maritime Services NSW Guide to Traffic Generating Developments NSW Office of Environment and Heritage NSW Industrial Noise Policy Category: Principal judgment Parties: Hunters Hill Ventures Pty Ltd (Applicant) Hunters Hill Council (Respondent) Representation: Solicitors: Mr Gough, Storey & Gough Lawyers (Applicant) Ms. J Hewitt, HWL Ebsworth Lawyers(Respondent) File Number(s): 2016/00192136 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97 (1)(b) of the Environmental Planning and Assessment Act 1979 (the Act), against the deemed refusal of development application number 2016/1073 lodged with Hunters Hill Council. The application seeks approval for the construction of a childcare centre for 88 children with 17 staff over a basement car park. The development is proposed over two lots at Joubert Street, Hunters Hill. 2. The appeal was subject to mandatory conciliation on 29 September 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34(4)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34(4)(b)(i) of the LEC Act. 3. Prior to the hearing leave was granted by the Court on September 22 2016 for the applicant to rely on amended plans (prepared by Art Made Architects, dated 10/1/12016) that had been informed by the conciliation and expert joint conferencing process. 4. At the commencement of the proceedings by the representative of Council advised the Court that the following information had addressed the issues initially raised by the council and detailed in the statement of facts and contentions (Exhibit 1). 1. A reduction in the number of children proposed, with a concurrent reduction in staffing numbers and parking generated by the centre; 2. The amended architectural plans that incorporate a change to the building form; 3. acoustic assessment and noise logging; 4. amended traffic impact assessment; 5. amended arborist report; 6. landscape plan, incorporating retention of a number of existing trees; 7. stormwater details; 8. an updated plan of management for the operations; and 9. the conditions proposed for any consent. In the Councils view, the matter outstanding for determination by the Court is whether the issues raised in the resident submissions have been adequately considered. 1. The issues before the Court therefore are: 1. whether the agreements between the experts are well founded and satisfy the matters for consideration in s79C (1)(a)-(c) of the Act; and 2. to consider the matters raised the submissions made by the public in response to the notification of the development application (s97C(d) and (e)) in the determination of the application.