Anglican Community Services v Hornsby Shire Council [2018] NSWLEC 1620

Land and Environment Court New South Wales

Medium Neutral Citation: Anglican Community Services v Hornsby Shire Council [2018] NSWLEC 1620 Hearing dates: Conciliation conference on 23 October 2018 and 22 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Class 1 Before: Bish C Decision: See [9] below Catchwords: MODIFICATION APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 Category: Principal judgment Parties: Anglican Community Services (Applicant) Hornsby Shire Council (Respondent) Representation: Solicitors: R Pleming, Allens (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/264230 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against deemed refusal by Hornsby Shire Council of Modification Application DA/1709/2007/J (proceedings 18/264230), hereafter the MA. The MA seeks to amend the road layout of the existing seniors living housing established under consent DA/1709/2007, to allow driveway connections to the development proposed on the adjacent lot. The MA relates to Lot 1 DP 1123753, also known as 599-607 Old Northern Road, Glenhaven. 2. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.56 of the EPA Act 1979. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 23 October 2018 (onsite) and 22 November 2018. I have presided over the conciliation conferences. There were no objections raised by third parties at the conciliation for this appeal. 4. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA/1709/2007/J with conditions. 5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the development application with conditions. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.56(1) of the EPA Act 1979, as consistency with the Hornsby Local Environmental Plan 2013 (HLEP 2013). Specifically, the parties explained that the development is essentially the same as approved under DA/1709/2007, with no fundamental changes to the functioning of the site as approved. The proposed changes are limited to the road network in the northern portion of the site, at Blue Gum Drive, where it connects to the neighbouring site, which is a development currently under appeal (2018/264204). The adjoining lot is proposed as a continuation of the seniors housing village approved at the site and the MA seeks to facilitate the functioning of the site. 6. The proposed changes to the approved DA do not result in inconsistency with the HLEP 2013, and in particular will not result in any amenity impacts to the existing approved development nor to the neighbours. 7. I am therefore 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 1979. 8. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 9. The Court orders: 1. The appeal is upheld. 2. Modification Application No. DA/1709/2007/J to modify Development Consent No. DA/1709/2007 (as modified) granted by the Respondent on 17 December 2008 for the construction of a "retirement village (Glenhaven Green) comprising 150 independent living units, community facility and ancillary works", by amending the road layout of the existing Glenhaven Green seniors housing village at 599-607 Old Northern Road Glenhaven to integrate the proposed seniors housing development on the adjoining land at 589-593 Old Northern Road Glenhaven the subject of DA/153/2018, is determined by approving the modification as set out in Annexure "A". 3. As a consequence of order 9(2), Development Consent No. DA/1709/2007 (as modified) is subject to the consolidated, modified conditions of consent as set out in Annexure "B". ………………………. Sarah Bish Commissioner of the Court Annexure A (241 KB, pdf) Annexure B (227 KB, pdf)