Land and Environment Court New South Wales Medium Neutral Citation: Bulldogs Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1609 Hearing dates: Conciliation conference on 20 September 2019; 28 October 2019; 15 November 2019 Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders: (1) The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'. (2) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,500.00 within 28 days of the date of these orders made by the Court. (3) The appeal is upheld. (4) Development Application DA/1115/2017 for the demolition of existing structures, adaptive reuse of an existing dwelling, and construction of a seniors living development at 14-18 Sutherland Road, Cheltenham, NSW is approved subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – Housing for Seniors or People with a Disability – 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 (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) Hornsby Local Environmental Plan 2013 (HLEP) Category: Principal judgment Parties: Bulldogs Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: McKees Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/391880 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Hornsby Shire Council (the Respondent) of Development Application DA DA1115/2017 for the demolition of existing structures (including two dwellings), adaptive reuse of an existing dwelling, and the construction of a seniors housing development comprising 12 dwellings, basement car parking, landscaping and the consolidation of all allotments. 2. The site consists of 3 lots, being Lot 5 in DP17378, Lot 4 in DP 17378 and Lot 3 in DP 878440 located at 14-18 Sutherland Road, Cheltenham, having a total site area of 3,272m² and a frontage to Sutherland Road of 60.51m and a maximum depth of 59.75m. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 September 2019, 28 October 2019 and 15 November 2019. The proceedings commenced onsite, at which the Court heard a number of resident submissions objecting to the proposal. The Court, in the company of the parties and the experts, was invited to view the site from an elevated terrace, and bedroom at No 20 Sutherland Road. 4. Following the site view, the parties continued conciliation discussions and agreed to amendments that would result in an in-principle agreement on the matters in contention. I presided over the conciliation conference, and adjourned the conference to allow amended plans to be prepared. 5. The conciliation conference was reconvened on a number of occasions to confirm the status of the amended plans. On 2 December 2019, a signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 7. 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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD), State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and the Hornsby Local Environmental Plan 2013 (HLEP). 9. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the following reasons: 1. The site is within the R2 Low Density Residential zone, and cl 4 of the HLEP permits dwelling houses with consent. 2. I am satisfied on the basis of the Access Report prepared by Accessibility Solutions dated 13 July 2018 that the location and access to facilities meets the requirements of cl 26 of the SEPP HSPD. 3. The site satisfies the development standards at cl 40 of the SEPP HSPD, relating to the site size, site frontage and the height of buildings in a residential zone where residential flat buildings are not permitted at cl 40(4). 4. The site also satisfies the minimum lot size required by cl 4.1 of the HLEP, the lots comply with the earthworks development standard at cl 6.2, and the site is not identified within a flood affected area as set out in cl 6.3 of the HLEP. 5. In relation to cl 7 of the SEPP 55, I am satisfied on the basis of the geotechnical report prepared by Geotechnique Pty Ltd dated May 2018 that the site is not known to be contaminated, and does not adjoin land known to be contaminated. 1. 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 merit assessment of the issues that were originally in dispute between the parties. 3. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'. 2. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,500.00 within 28 days of the date of these orders made by the Court. 3. The appeal is upheld. 4. Development Application DA/1115/2017 for the demolition of existing structures, adaptive reuse of an existing dwelling, and construction of a seniors living development at 14-18 Sutherland Road, Cheltenham, NSW is approved subject to the conditions set out in Annexure 'A'. ………………………… T Horton Commissioner of the Court Annexure A (375 KB, pdf) ********** 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: 11 December 2019