Land and Environment Court New South Wales Medium Neutral Citation: Javian Developments Pty Ltd v The Hills Shire Council [2019] NSWLEC 1321 Hearing dates: Conciliation conference on 5 July 2019 Date of orders: 09 July 2019 Decision date: 09 July 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [9] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Texts Cited: NSW Office of Heritage and Environment, Guidelines for Consultants Reporting on Contaminated Sites Category: Principal judgment Parties: Javian Developments Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Solicitors: V Conomos, Conomos Legal (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2018/154579 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against The Hills Shire Council's deemed refusal of development application 1184/2018/ZE ('DA'). 2. Pursuant to the parties' s34 Agreement, the Applicant seeks leave to rely on amended plans and material. Under the DA as amended, the Applicant seeks consent for the demolition of existing structures and small lot housing development, and subdivision creating 42 residential lots, with construction of 28 semi-detached dwelling and 14 dwelling houses including new road and associated road works and landscaping works. The site comprises the following parcels: * 27 Hynds Road, Box Hill (Lot 85 DP 11104) * 25 Hynds Road, Box Hill (Lot 85A DP 11104) * 29 Hynds Road, Box Hill (Lot 86 DP 10157) * 25 Mason Road, Box Hill (Lot 70 DP 11104). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 5 July 2019. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 2. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, I note the following: * The development application was made with the written consent of landowners. * The development is permissible within Zone R3 Medium Density Residential zone pursuant to the provisions Appendix 11 The Hills Growth Centre Precincts Plan ("the Precinct Plan") of State Environmental Planning Policy (Sydney Region Growth Centres) 2006. * The development does not contravene any development standard in the Precinct Plan or any other applicable environmental planning instrument. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The subject site is suitable for the purpose of the proposed development, having regard to the findings of the following reports prepared in accordance with the "Contaminated Sites, Guidelines for Consultants Reporting on Contaminated Sites", prepared by the Office of Environment and Heritage (2011): ○ Preliminary Site Investigation prepared by Benviron Group dated November 2017, Revision 0; ○ Report on Stage 2 Contamination Assessment prepared by ideal geotech dated November 2018. * The infrastructure referred to in cl 6.1 of the Precinct Plan is available or adequate arrangements have been made to make the infrastructure available when required. * The development application was accompanied by BASIX Certificates in respect of the proposed development. 1. I have relevantly affirmed the advice of the parties with respect to the above and am 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. 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 to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application under s 4.15(1) of the EPA Act. 3. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans: DWG NO. DESCRIPTION: PREPARED BY REV DATE Plan of Subdivision Huy Duc Xuan Thai E 05/11/2018 0 Cover Page Baini Design C 20/02/2019 00 Cover Page Baini Design C 20/02/2019 01 Overall Site Plan Baini Design C 20/02/2019 02 Site Plan 1 Baini Design C 20/02/2019 03 Site Plan 2 Baini Design C 20/02/2019 04 Site Analysis Plan Baini Design C 20/02/2019 05 Landscape Calculation Plan Baini Design C 20/02/2019 06 Demolition Plan Baini Design C 20/02/2019 07 Concept Subdivision Plan Baini Design C 20/02/2019 08 Staged Construction Plan Baini Design C 20/02/2019 09 Streetscape Elevation Baini Design C 20/02/2019 10 Overall First Floor Plan Baini Design C 20/02/2019 11 Lot 1 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 12 Lot 1 – Elevations, Sections Baini Design C 20/02/2019 13 Lot 2 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 14 Lot 2 – Elevations, Sections Baini Design C 20/02/2019 15 Lot 3 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 16 Lot 3 – Elevations, Sections Baini Design C 20/02/2019 17 Lot 4 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 18 Lot 4 – Elevations, Sections Baini Design C 20/02/2019 19 Lot 5 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 20 Lot 5 – Elevations, Sections Baini Design C 20/02/2019 21 Lots 6 & 7 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 22 Lots 6 & 7 – Elevations, Sections Baini Design C 20/02/2919 23 Lots 8 & 9 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 24 Lots 8 & 9 – Elevations, Sections Baini Design C 20/02/2019 25 Lot 10 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 26 Lot 10 – Elevations, Sections Baini Design C 20/02/2019 27 Lots 11 & 12 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 28 Lots 11 & 12 – Elevations, Sections Baini Design C 20/02/2019 29 Lots 13 & 14 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 30 Lots 13 & 14 – Elevations, Sections Baini Design C 20/02/2019 31 Lots 15 & 16 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 32 Lots 15 & 16 – Elevations, Sections Baini Design C 20/02/2019 33 Lot 17 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 34 Lot 17 – Elevations, Sections Baini Design C 20/02/2019 35 Lots 18 & 19 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 36 Lots 18 & 19 – Elevations, Sections Baini Design C 20/02/2019 37 Lots 20 & 21 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 38 Lots 20 & 21 – Elevations, Sections Baini Design C 20/02/2019 39 Lot 22 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 40 Lot 22 – Elevations, Sections Baini Design C 20/02/2019 41 Lot 23 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 42 Lot 23 – Elevations, Sections Baini Design C 20/02/2019 43 Lot 24 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 44 Lot 24 – Elevations, Sections Baini Design C 20/02/2019 45 Lot 25 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 46 Lot 25 – Elevations, Sections Baini Design C 20/02/2019 47 Lot 26 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 48 Lot 26 – Elevations, Sections Baini Design C 20/02/2019 49 Lots 27 & 28 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 50 Lots 27 & 28 – Elevations, Sections Baini Design C 20/02/2019 51 Lots 29 & 30 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 52 Lots 29 & 30 – Elevations, Sections Baini Design C 20/02/2019 53 Lot 31 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 54 Lot 31 – Elevations, Sections Baini Design C 20/02/2019 55 Lots 32 & 33 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 56 Lots 32 & 33 – Elevations, Sections Baini Design C 20/02/2019 57 Lots 34 & 35 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 58 Lots 34 & 35 – Elevations, Sections Baini Design C 20/02/2019 59 Lots 36 & 37 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 60 Lots 36 & 37 – Elevations, Sections Baini Design C 20/02/2019 61 Lot 38 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 62 Lot 38 – Elevations, Sections Baini Design C 20/02/2019 63 Lots 39 & 40 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 64 Lots 39 & 40 – Elevations, Sections Baini Design C 20/02/2019 65 Lots 41 & 42 – Compliance Table, Floor Plans, Roof Plan, External Glazing Schedule, Basix Notes, 3D View Baini Design C 20/02/2019 66 Lots 41 & 42 – Elevations, Sections Baini Design C 20/02/2019 67 Driveway Sections – Lots 1 to 17 Baini Design C 20/02/2019 68 Driveway Sections – Lots 18 to 35 Baini Design C 20/02/2019 69 Driveway Sections – Lots 36 to 42 Baini Design C 20/02/2019 LP-00 Landscape Context Plan & Cover Sheet JALA Designs E 14/03/2019 LP-01 Detailed Landscape Plan 1 of 3 JALA Designs E 14/03/2019 LP-02 Detailed Landscape Plan 2 of 3 JALA Designs E 14/03/2019 LP-03 Detailed Landscape Plan 3 of 3 JALA Designs E 14/03/2019 LP-04 Street Tree Plan – 1 of 2 JALA Designs E 14/03/2019 LP-05 Street Tree Plan – 2 of 2 JALA Designs E 14/03/2019 LP-06 Planting Schedule & Details JALA Designs E 14/03/2019 C00 General Notes, Locality Plan and Drawing Schedule Australian Consulting Engineers G 18/02/19 C00.1 Key Plan Australian Consulting Engineers F 18/02/19 C01 Civil Works Layout Plan Sheet 1 of 2 Australian Consulting Engineers E 15/01/19 C01.1 Civil Works Layout Plan Sheet 2 of 2 Australian Consulting Engineers G 18/02/19 C01.A Civil Works Layout Plan Sheet 1 of 2 (Alternative) Australian Consulting Engineers C 15/01/19 C02 Hynds Road – Longitudinal Section Australian Consulting Engineers E 18/02/19 C03 Aurora Street – Longitudinal Section Australian Consulting Engineers E 18/02/19 C03.1 Nova Street – Longitudinal Section Australian Consulting Engineers D 18/02/19 C03.2 Zaniah Street – Longitudinal Section Australian Consulting Engineers C 10/12/18 C04 Hynds Road – Cross Sections Australian Consulting Engineers E 18/02/19 C05 Aurora Street – Cross Sections Australian Consulting Engineers E 10/12/18 C05.1 Nova Street – Cross Sections Sheet 1 of 4 Australian Consulting Engineers D 10/12/18 C05.2 Nova Street – Cross Sections Sheet 2 of 4 Australian Consulting Engineers D 10/12/18 C05.2A Nova Street – Cross Sections Sheet 3 of 4 Australian Consulting Engineers B 10/12/18 C05.2B Nova Street – Cross Sections Sheet 4 of 4 Australian Consulting Engineers B 10/12/18 C05.3 Zaniah Street – Cross Sections Sheet 1 of 4 Australian Consulting Engineers D 10/12/18 C05.4 Zaniah Street – Cross Sections Sheet 2 of 4 Australian Consulting Engineers D 10/12/18 C05.5 Zaniah Street – Cross Sections Sheet 3 of 4 Australian Consulting Engineers B 10/12/18 C05.6 Zaniah Street – Cross Sections Sheet 4 of 4 Australian Consulting Engineers B 10/12/18 C06 Typical Cross Sections Sheet 1 of 2 Australian Consulting Engineers D 10/12/18 C06.1 Typical Cross Sections Sheet 2 of 2 Australian Consulting Engineers D 18/02/19 C07 Construction Notes and Details Australian Consulting Engineers C 10/12/18 C08 Linemarking and Signage Plan Australian Consulting Engineers E 18/02/19 C09 Bulk Earthworks Plan Australian Consulting Engineers D 15/01/19 C00 General Notes, Locality Plan & Drawing Schedule Australian Consulting Engineers A 21/05/19 C01 Bulk Earthworks Plan Sheet 1 of 2 Australian Consulting Engineers A 21/05/19 C02 Bulk Earthworks Plan Sheet 2 of 2 Australian Consulting Engineers A 21/05/19 ACE171521.SW.DA – 000 Cover Sheet, Notes & Legend Australian Consulting Engineers H 18/03/19 ACE171521.SW.DA – 101 Stormwater Concept Plan Ground Level Sheet 1 of 2 Australian Consulting Engineers M 22/05/19 ACE171521.SW.DA – 102 Stormwater Concept Plan Ground Level Sheet 2 of 2 Australian Consulting Engineers M 22/05/19 ACE171521.SW.DA – 103 Stormwater Concept Plan Level 1 Australian Consulting Engineers G 17/01/19 ACE171521.SW.DA – 104 OSD & WSUD Details and Calculation Sheet 1 of 4 Australian Consulting Engineers F 18/03/19 ACE171521.SW.DA – 104.1 OSD & WSUD Details and Calculation Sheet 2 of 4 Australian Consulting Engineers B 18/03/19 ACE171521.SW.DA - 104.2 OSD & WSUD Details and Calculation Sheet 3 of 4 Australian Consulting Engineers B 18/03/19 ACE171521.SW.DA – 105 OSD & WSUD Details and Calculation Sheet 4 of 4 Australian Consulting Engineers I 18/03/19 ACE171521.SW.DA – 106 Miscellaneous Details Sheet Australian Consulting Engineers F 18/03/19 ACE171521.SW.DA – 107 Drains Model Catchment Plan Australian Consulting Engineers K 18/03/19 ACE171521.SW.DA – 108 MUSIC Model Catchment Plan Australian Consulting Engineers E 18/03/19 ACE171521.SW.DA – 109 External Catchment Plan Australian Consulting Engineers E 18/03/19 ACE171521.SW.DA - 110 Drainage Lines Long Sections Sheet 1 of 2 Australian Consulting Engineers A 18/03/19 ACE171521.SW.DA – 111 Drainage Lines Long Sections Sheet 2 of 2 Australian Consulting Engineers A 18/03/19 1. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,000.00 within 14 days of these orders. 2. The appeal is upheld. 3. Development Application No. 1184/2018/ZE for the demolition of existing structures and small lot housing development, and subdivision creating 42 residential lots, with construction of 28 semi-detached dwelling and 14 dwelling houses including new road and associated road works and landscaping works on the land at: 1. 27 Hynds Road, Box Hill (Lot 85 DP 11104) 2. 25 Hynds Road, Box Hill (Lot 85A DP 11104) 3. 29 Hynds Road, Box Hill (Lot 86 DP 10157) 4. 25 Mason Road, Box Hill (Lot 70 DP 11104) is approved subject to the conditions of consent annexed hereto and marked "A". …………………………. P Walsh Commissioner of the Court Annexure A (1.54 MB) Architectural Plans_Part1 (10.2 MB) Architectural Plans_Part2 (10.4 MB) Architectural Plans_Part3 (9.53 MB) Architectural Plans_Part4 (3.43 MB) Landscape Plans (4.53 MB) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2019