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[2025] NSWLEC 1754
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-17
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Botros v The Hills Shire Council [2025] NSWLEC 1754
Hearing dates: Conciliation conference on 14 October 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development application 1469/2025/LD for the demolition of existing structures and construction of a two-storey dwelling with basement parking, swimming pool and associated works at 7 Wychwood Place, Castle Hill, is determined by the grant of consent subject to the conditions in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – single dwelling house – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
The Hills Local Environmental Plan 2019, cll 4.3, 7.2
Category: Principal judgment
Parties: Joseph Botros (Applicant)
The Hills Shire Council (Respondent)
Representation: Counsel:
M Mantei (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 2025/217432
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by The Hills Shire Council (the Council), of Development Application 1469/2025/LD which seeks consent for the demolition of existing structures and construction of a two-storey dwelling with basement parking, swimming pool and associated works at 7 Wychwood Place, Castle Hill, legally described as Lot 243 DP 260994.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 14 October 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Accordingly, the matter concluded in conciliation and did not proceed to a hearing.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Council agreed to the applicant amending the development application to adequately address the Council’s contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, which the parties identified and explained. From this, I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 2 April 2025 and 28 April 2025. Three objections were received, one of which included a petition with nine signatures. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. The parties agree that the amended application does not necessitate renotification.
The subject site is zoned R2 Low Density Residential under The Hills Local Environmental Plan 2019 (THLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.
Pursuant to THLEP cl 4.3, a maximum building height of 9m applies to the subject site. The proposed development complies with this development standard with a maximum height of 8.8m.
Earthworks are proposed as part of the development and accordingly, cl 7.2 of THLEP applies. From the information in the Statement of Environmental Effects by BMA Urban dated 21 February 2025 (SEE) and the parties’ submission, I accept that the matters listed in cl 7.2(3) have been considered and the proposed earthworks meet the requirements of this clause.
The site is located within the Hawkesbury-Nepean Catchment and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. From the parties’ submission and the information in the SEE, I accept that the requirements of Ch 6 of SEPP B&C relating to water quality and quantity (s 6.6) and aquatic ecology (s 6.7) are met with the proposed development. I further accept that the proposed development is not flood liable land or within the vicinity of any wetlands (s 6.8), does not affect public access to and from natural waterbodies or impact recreational uses in the catchment (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the SEE, I accept that the subject site has historically been used for residential purposes and there is no record of any contamination or contaminating activity on site. Accordingly, I accept that in terms of contamination, the site is suitable for the intended, continued residential use.
A BASIX certificate has been provided that relates to the development as amended, and quantifies the embodied emissions attributable to the development pursuant to the requirements of State Environmental Planning Policy (Sustainable Buildings) 2022 s 2.1.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
The Hills Shire Council as the relevant consent authority has approved the amendment of Development Application No. 1469/2025/LD pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 in accordance with the plans and documents listed below:
| Plan number | Revision number | Plan title | Prepared by | Date of plan | | CBD3239 – Sh.1 | K | Cover Sheet | Construction by Design | 22.09.2025 | | CBD3239 – Sh.2 | K | Site Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.2.1 | K | Demolition & Site Mgt. Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.2.2 | K | Site Analysis Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.3 | K | Lower Ground Floor Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.4 | K | Ground Floor Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.5 | K | First Floor Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.6 | K | Roof Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.7 | K | Elevations | Construction by Design | 22.09.2025 | | CBD3239 – Sh.8 | K | Elevations | Construction by Design | 22.09.2025 | | CBD3239 – Sh.9 | K | Section | Construction by Design | 22.09.2025 | | CBD3239 – Sh.10 | K | Glazing Specifications | Construction by Design | 22.09.2025 | | CBD3239 – Sh.11 | K | Glazing Specifications | Construction by Design | 22.09.2025 | | CBD3239 – Sh.12 | K | Height Plane Diagram | Construction by Design | 22.09.2025 | | CBD3239 – Sh.13 | K | Site Coverage Plan | Construction by Design | 22.09.2025 | | CBD3239 – Sh.14 | K | Winter Shadows | Construction by Design | 22.09.2025 | | CBD3239 – Sh.15 | K | Earthworks & Cut/Fill Plan | Construction by Design | 22.09.2025 | | 240382 – C00.01 | E | General Notes | Engineering Studio | 12.09.2025 | | 240382 – C01.01 | E | Sediment and Erosion Control Plan | Engineering Studio | 12.09.2025 | | 240382 – C01.02 | E | Sediment and Erosion Control Details | Engineering Studio | 12.09.2025 | | 240382 - C02.01 | E | Stormwater Drainage Plan | Engineering Studio | 12.09.2025 | | 240382 - C02.02 | E | Basement Drainage Plan | Engineering Studio | 12.09.2025 | | 240382 - C02.03 | E | Stormwater Details Sheet 1 | Engineering Studio | 12.09.2025 | | 240382 - C02.04 | E | Stormwater Details Sheet 2 | Engineering Studio | 12.09.2025 | | 240382 - C02.05 | E | Stormwater Details Sheet 3 | Engineering Studio | 12.09.2025 | | 3 – CS | E | Landscape Plan | Fluid Design | 25.09.2025 |
| Document title | Prepared by | Date of document | | BASIX Certificate No. 1754088S_03 | BH Homes Pty Ltd | 30.09.2025 |
The Court orders:
The appeal is upheld.
Development application 1469/2025/LD for the demolition of existing structures and construction of a two-storey dwelling with basement parking, swimming pool and associated works at 7 Wychwood Place, Castle Hill, is determined by the grant of consent subject to the conditions in Annexure A.
Annexure A (250 KB, pdf)
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Botros
The Hills Shire Council [2025] NSWLEC 1754