Hynes Properties Pty Ltd v The Hills Shire Council [2018] NSWLEC 123

Land and Environment Court New South Wales

Medium Neutral Citation: Hynes Properties Pty Ltd v The Hills Shire Council [2018] NSWLEC 123 Hearing dates: 1-2 August 2018, 23 August 2018 Date of orders: 28 August 2018 Decision date: 28 August 2018 Jurisdiction: Class 1 Before: Pain J Decision: See [61] of judgment Catchwords: APPEAL – development application for small lot subdivisions – proposed demolition of single-storey house and construction of three attached dwellings on separate lots – construction of DCP – appeal upheld Legislation Cited: Baulkham Hills Local Environmental Plan 2005 Environmental Planning and Assessment Act 1979 ss 3.43, 4.15, 8.7 Land and Environment Court Act 1979 s 17 The Hills Development Control Plan 2012 The Hills Local Environmental Plan 2012 cl 2.3, Land Use Table, cll 4.1A, 4.1B, Dictionary Cases Cited: Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; [2001] NSWLEC 213 Category: Principal judgment Parties: Hynes Properties Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: COUNSEL: M Staunton (Applicant) T To (Respondent)

SOLICITORS: Mills Oakley (Applicant) Matthews Folbigg (Respondent) File Number(s): 2017/281065

Judgment 1. Hynes Properties Pty Ltd (the Applicant) appeals against the refusal by The Hills Shire Council (the Council) of its development application (DA) seeking approval for demolition of an existing single-storey house and construction of three dwellings as attached housing at 32 Sherwin Avenue Castle Hill (the Property) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court is sitting in a Class 1 merit appeal under s 17(d) of the Land and Environment Court Act 1979 and therefore determines the merits of the application afresh exercising all the relevant powers of the Council under the EPA Act. 2. The property is zoned R3 Medium Density Residential as is the surrounding area bounded by Whitling Avenue to the Property's west, Purser Avenue to the Property's south and Hume Avenue to the Property's east. 3. The Court went on a site visit at the outset of the hearing in the presence of the parties and their expert town planners. There are single-storey free standing houses on either side of the Property. The opposite side of Sherwin Avenue is zoned R4 High Density Residential where a number of multi-dwelling buildings are located. 4. To the rear is a townhouse development entered from Purser Avenue. The rear of that development consists largely of turning circles and a communal space.