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[2026] NSWLEC 1004
General information, not legal advice.
Land and Environment Court (NSW)
2026-01-07
Espinosa 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: Hans Sukrit Pty Ltd v Hills Shire Council [2026] NSWLEC 1004
Hearing dates: Conciliation Conference held on 28 October and 26 November 2025
Date of orders: 07 January 2026
Decision date: 07 January 2026
Jurisdiction: Class 1
Before: Espinosa C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Consent is granted to Development Application No 1136/2024/HA lodged with Hills Shire Council on 6 March 2024, as amended, seeking consent for alterations and additions to an existing building and its use as a restaurant, car parking and associated works on the land at 778 Old Northern Road, Middle Dural NSW 2158 known as Lot 2 in Deposited Plan 535085 subject to the conditions contained in Annexure A.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, payable within 28 days of the date of these Orders.
Catchwords: DEVELOPMENT APPEAL – alterations and additions – use as restaurant - 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), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.119 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 The Hills Local Environmental Plan 2019, cll 4.3, 4.4, 5.10, 5.21, 7.1, 7.2, 7.4
Texts Cited: The Hills Shire Development Control Plan 2012
Category: Principal judgment
Parties: Hans Sukrit Pty Ltd (Applicant)
Hills Shire Council (Respondent)
Representation: Counsel:
M Parrino (Solicitor)(Applicant)
S Kondilios (Solicitor)(Respondent)
Solicitors:
Project Lawyers (Applicant)
Hall and Wilcox (Respondent)
File Number(s): 2025/303258
Publication restriction: Nil
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application No 1136/2024/HA seeking consent for Alterations and Additions to an Existing Building and its Use as a Restaurant, Car Parking and Associated Works (Proposed Development) at 778 Old Northern Road, Middle Dural legally described as Lot 2 in Deposited Plan 535085 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 28 October and 26 November 2025. I presided over the conciliation conference.
At 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 involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.
The Site is zoned RU6 Transition pursuant to the provisions of The Hills Local Environmental Plan 2019 (THLEP).
Restaurants or cafes are permissible with consent within the RU6 zone and are defined as:
restaurant or cafe means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, take away meals and drinks or entertainment are also provided, but does not include the preparation and serving of food and drink to people that occurs as part of—
(a) an artisan food and drink industry, or
(b) farm gate premises.
The landowner’s consent has been obtained for the Development Application, as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) and filed with the Class 1 Application.
The Development Application was notified by the Respondent to nearby and adjoining residents and landowners between 12 March 2024 and 2 April 2024. The Respondent received 2 submissions objecting to the Proposed Development. An objector also attended the site view to provide oral submissions.
The Proposed Development has a maximum height of building (HOB) of 9.9m with no part of the proposed built form to encroach the 10m maximum HOB development standard pursuant to cl 4.3 of the THLEP.
The Site is not subject to any FSR development standard under cl 4.4 of the THLEP.
The Site is not identified as containing a heritage item and is not currently located within a Heritage Conservation Area. The development is sufficiently separated from local heritage items and will have no impact on the heritage curtilage of the local heritage items. Further, the proposed works do not affect any known archaeological or Aboriginal objects or Aboriginal places of heritage significance: cl 5.10, THLEP.
The Site is not identified:
on the Flood Planning Map as being within a Flood Planning Area: cl 5.21, THLEP;
as being potentially affected by Acid Sulfate Soils: cl 7.1, THLEP; and
as containing significant terrestrial biodiversity and is not identified on the Terrestrial Biodiversity Map: cl 7.4, THLEP.
Clause 7.2 of THLEP – Earthworks, contains the requirements surrounding the earthworks. The proposal will result in an appropriate outcome given the nature of the development, the unique characteristics of the Site and the proposed compliance with the relevant Council controls.
It is considered that the proposed excavation, particularly for the car parking area, will have minimal adverse environmental or amenity impacts.
The proposal will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area.
It is considered unlikely due to the location of the site, as well as previous development, that excavation will lead to the disturbance of relics.
The Arborist Impact Assessment defines the area isolated from construction disturbances, it also prescribes where hand demolition of structures in the Tree Protection Zone of trees will be stipulated (Tab 12, Class 1 Application).
The Statement of Environmental Effects, prepared by Camileri Planning Service, explains how Ch 6, part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) is satisfied at p 6 as follows:
“The proposed development incorporates appropriate stormwater measures (during construction and ongoing occupation of the site). The construction measures include installation and maintenance of silt fencing during construction, temporary driveway constructed of crushed rock to contain sediment to the site. Occupational measures include roof water capture and reuse on site and overflow being disposed via an absorption trench system which will not affect the health of the Hawkesbury Nepean River system.”
The Proposed Development was referred to TfNSW in accordance with Ch 2 of the Statement Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) and the parties agree that the proposed development is in accordance with the goals and objectives of the Transport and Infrastructure SEPP.
The Proposed Development includes the provision of 121 carparking spaces in line with the car parking rates under The Hills Shire Development Control Plan 2012. Two separate access driveways will be provided at Old Northern Road to provide access to the at- grade car park. Vehicle will enter via the southern access and exit via the northern access. The access driveways are designed in accordance with the AS2890.1 criteria (Class 1 Application, Tab 17, Traffic Report, p 12).
The parties agree that the Development Application, as amended, satisfies the requirements of s 2.119 of the Transport and Infrastructure SEPP. The Statement of Environmental Effects filed with the Class 1 Application provides at p 7 as follows:
“For this development, it is noted that alternate access to the site via a road that isn’t a classified road is not possible, as it only has frontage to Old Northern Road.
The safety, efficiency and ongoing operation of Old Northern Road will not be affected by this development as all vehicles accessing the site can enter and exit in a forward direction and are located within existing crossovers. There will be minimal smoke or dust created from the development. The volume or frequency of vehicles gaining access to the site from the classified road will not disrupt the operation of the classified road.
The development is not sensitive to road traffic as it is a restaurant and noise mitigation measures are not deemed necessary.”
Given the historical use of the site for residential purposes, land contamination is not likely. The development site has historically been utilised for residential purposes with no known potential contaminating activities being conducted on site. The Site is intended to be used as a restaurant/business and in the context of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 the land is therefore considered to be suitable for this use.
I 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. I adopt the reasons given by the parties as set out in this judgment.
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.
The Court notes:
The Respondent as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the amendment to the Development Application No 1136/2024/HA (Amended Development Application), to include the following plans and documents:
| Approved plans | | Plan number | Revision number | Plan title | Drawn by | Date of plan | | A001 | G | General Notes and Site Analysis | Studiohaus | 21/11/2025 | | A100 | G | Key Plan and Site Plan | Studiohaus | 21/11/2025 | | A101 | G | Site Plan Part 1 | Studiohaus | 21/11/2025 | | A102 | G | Site Plan Part 2 | Studiohaus | 21/11/2025 | | A103 | G | Site Plan Part 3 | Studiohaus | 21/11/2025 | | A104 | G | Demolition Plan Lower Ground Floor | Studiohaus | 21/11/2025 | | A105 | G | Demolition Plan Ground Floor | Studiohaus | 21/11/2025 | | A200 | G | Lower Ground Floor Plan | Studiohaus | 21/11/2025 | | A201 | G | Ground Floor Plan | Studiohaus | 21/11/2025 | | A202 | G | Roof Plan | Studiohaus | 21/11/2025 | | A300 | G | Proposed Elevations | Studiohaus | 21/11/2025 | | A301 | G | Proposed Elevations | Studiohaus | 21/11/2025 | | A400 | G | Proposed Sections | Studiohaus | 21/11/2025 | | A401 | G | Proposed Sections | Studiohaus | 21/11/2025 | | A402 | G | Proposed Site Sections | Studiohaus | 21/11/2025 | | A800 | G | Material Schedule | Studiohaus | 21/11/2025 | | A900 | G | Area Schedule | Studiohaus | 21/11/2025 | | L/01 | D | Landscape Plan – Sheet 1 | ATC | 21/11/2025 | | C01.00 | 5 | Site Stormwater Drainage Layout Plan | Zheng Engineers | 11/11/2025 | | C01.01 | 5 | Site Stormwater Drainage Layout Plan | Zheng Engineers | 11/11/2025 | | C01.02 | 5 | Site Stormwater Drainage Layout Plan- Sheet 1 | Zheng Engineers | 11/11/2025 | | C01.03 | 5 | Site Stormwater Drainage Layout Plan- Sheet 2 | Zheng Engineers | 11/11/2025 | | C01.04 | 5 | Site Stormwater Drainage Layout Plan- Sheet 3 | Zheng Engineers | 11/11/2025 | | C02.00 | 5 | Roof Stormwater Drainage Layout Plan- Sheet 1 | Zheng Engineers | 11/11/2025 | | C02.015 | 5 | Roof Stormwater Drainage Layout Plan- Sheet 2 | Zheng Engineers | 11/11/2025 | | C03.00 | 5 | Stormwater Details - Sheet 1 | Zheng Engineers | 11/11/2025 | | C03.01 | 5 | Stormwater Details - Sheet 2 | Zheng Engineers | 11/11/2025 | | Approved documents | | Document title | Version number | Prepared by | Date of document | | Plan of Management | Final | PCN Urban | 26 November 2025 | | Acoustic Assessment Report | SYD2023-1204- R001E | Acouras Consultancy Pty Ltd, | 14/11/20258 | | On-site Wastewater Report | REF: 3233-WW-B-03 | Broadcrest Environmental Pty Ltd | 12/11/2025 |
The Court orders:
The appeal is upheld.
Development Consent is granted to Development Application No 1136/2024/HA lodged with Hills Shire Council on 6 March 2024, as amended, seeking consent for alterations and additions to an existing building and its use as a restaurant, car parking and associated works on the land at 778 Old Northern Road, Middle Dural NSW 2158 known as Lot 2 in Deposited Plan 535085 subject to the conditions contained in Annexure A.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, as agreed or assessed, payable within 28 days of the date of these Orders.
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Annexure A (411 KB, pdf)
Hans Sukrit Pty Ltd
Hills Shire Council [2026] NSWLEC 1004