Namul v The Hills Shire Council [2016] NSWLEC 1629

Land and Environment Court New South Wales

Medium Neutral Citation: Namul v The Hills Shire Council [2016] NSWLEC 1629 Hearing dates: 6-7 December 2016 Date of orders: 23 December 2016 Decision date: 23 December 2016 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is upheld. 2. Development application No. 576/2016/JP for the subdivision of Lot 12 York Road, Kellyville into 3 lots and the development of these lots for six residential flat buildings and a child care centre is approved subject to the conditions set out in Annexure "A". 3. The exhibits, other than Exhibits 1, A and B, are returned Catchwords: DEVELOPMENT APPLICATION: Subdivision; residential flat buildings; child care centre; road extensions; development in transition zone; permissible uses; overdevelopment; road dedication; resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 The Hills Local Environmental Plan 2012 Category: Principal judgment Parties: Namul Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: Mr C McEwen (Applicant) Mr T To (Respondent) Solicitors: Mr H Kahagalle, Addisons (Applicant) Mr A Hudson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2016/00197481 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal arose under section 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) from the refusal by the Sydney West Joint Regional Planning Panel (JRPP) of development application No. 576/2016/JP (the application) lodged with Hills Shire Council (the Council) in October 2015. 2. The application, as amended, proposes the subdivision of a 3.59ha site in York Road, Kellyville into 3 lots, being proposed Lots 1 and 2 containing between them six residential flat buildings (RFB's) and proposed Lot 3 containing a child care centre. The extension of York Road and Alessandra Drive is also proposed to provide access to the development from the east, south and west. 3. The JRPP was the consent authority for the application as the proposal had a capital investment value of more than $20 million. 4. The focus of the appeal concerned the proposed reliance on clause 5 3 of The Hills Local Environmental Plan 2012 (the LEP) to enable a portion of the proposed RFB's to be located on land zoned R3 Medium Density Residential where RFB's would otherwise not be permitted, because the land is within 20 metres of the R4 High Density Residential Zone. 5. Specifically, the LEP provides that a use permissible in an adjoining zone may be approved for a distance of up to 20 metres from the zone boundary if it would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for both the site's zoning and the zoning of the adjoining land. This 20m portion of land was referred to as the 'transition land' in the appeal. 6. The appropriateness of the development in the transition land, and of the application of cl 5.3 in this instance, was the determinative issue in the appeal.