Landen Dev No. 13 Pty Ltd v The Hills Shire Council

Category: Principal judgment

Parties: Landen Dev No. 13 Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation: Counsel:
H Grace (Applicant)
A Pearman (Respondent)
Solicitors:
K&L Gates (Applicant)
Matthews Folbigg (Respondent)

File Number(s): 2024/362675

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by The Hills Shire Council, of Development Application 739/2024/ZD through which Landed Dev No. 13 Pty Ltd seeks consent for subdivision creating 22 community title residential lots and one community association lot at 67-69 Stringer Road, North Kellyville, Lots 5 and 6 DP 568873.

2. In detail, the proposed development includes:

3. demolition of two dwelling houses and ancillary structures;

4. removal of trees and vegetation;

5. bulk earthworks associated with road construction, drainage and lot levelling;

6. the half-width construction of Stringer Road and two private roads;

7. provision of utility services such as water supply, reticulated sewer, electricity and telecommunications;

8. landscaping and public domain works including the construction of shared paths within Stringer Road and the southern Council road reserve; and

9. community title subdivision to create 22 residential lots and one community association lot within a neighbourhood scheme.

10. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

11. Following an initial, unsuccessful conciliation conference, the Court arranged a hearing to be held in the Land and Environment Court on 17-19 September 2025. However, the parties continued to conciliate prior to these hearing dates and successfully resolved the matters in contention. Consequently, at the parties’ request, the matter was listed for a further conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 17 September 2025.

12. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

13. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately resolve the issues in contention. The application as amended is for a staged community title subdivision to create 21 residential lots and one community association lot.

14. 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.

Jurisdictional matters

8. The development application was made with the written consent of the owner of the land.

9. The application was adequately notified from 8 April to 7 May 2024. One submission was received in this time and based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised.

10. The site is mapped as bush fire prone land and accordingly, a bush fire safety authority is required pursuant to s 100B of the Rural Fires Act 1997 (NSW). The development has been designated as integrated development and was duly referred to the NSW Rural Fire Service (RFS). A bush fire safety authority with general terms of approval (GTAs) was issued by the RFS, and these GTAs have been incorporated into the agreed conditions of consent.

11. Part of the subject site is mapped as ‘biodiversity values’. Section 7.2(1) of the Biodiversity Conservation Act 2016 (NSW) (BC Act) states that development is likely to significantly affect threatened species if the development exceeds the biodiversity offsets scheme threshold. The Streamlined Biodiversity Development Assessment Report (BDAR) by Ecoplanning dated 27 August 2025 confirms that the proposed development exceeds the biodiversity offsets scheme threshold pursuant to s 7.4(1) of the BC Act. The BDAR also considers and assesses the impacts to native vegetation and threatened flora and fauna species, including their habitat, concluding that the proposal has adhered to the principles of avoiding and minimising impacts on biodiversity values. Offset credits are proposed, and compliance with the BDAR is required by the agreed conditions of consent.

12. Based on the Preliminary and Detailed Site Investigation Report dated 12 September 2023 and the Remedial Action Plan dated 14 September 2023, both prepared by Sydney Environmental Group, I accept that subject to the necessary remediation, in terms of contamination the site can be made suitable for the intended purpose in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

13. 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 amended application, 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 located within the flood liable land of the site (s 6.8) does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10). Finally, the parties submit and I accept that the matters listed in s 6.13 relating to Hawkesbury-Nepean conservation area sub-catchments have been considered, and that these criteria are met.

14. The site is burdened by an easement for electricity transmission that benefits Transgrid. Accordingly, pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, written notice of this application was given to Transgrid, who confirmed that the application is acceptable subject to conditions. These conditions have been incorporated into the agreed conditions of consent.

15. The subject site is zoned C4 Environmental Living (previously E4 Environmental Living) under the State Environmental Planning Policy (Precincts – Central River City) 2021 (Precincts SEPP), Appendix 5 North Kellyville Precinct Plan (Precinct Plan). Subdivision is permitted with consent pursuant to s 2.6 of the Precincts SEPP, and the proposed development is consistent with the objectives of the C4 zone.

16. Pursuant to the relevant parts of ‘Development controls – general’ at Pt 3.4 of the Precincts SEPP, the parties submit, and I accept that the site is serviced by a water recycling plant and that water from this plant will be provided to the development (s 3.23). Further, the development is not for the purpose of electricity generating works or water recycling facilities (ss 3.24 and 3.25).

17. The parties submit, and I accept that they have considered the matters listed in s 3.26 relating to development on flood prone and major creeks land, and that the proposed development is acceptable under these considerations.

18. Although s 4.1 of the Precinct Plan requires a minimum lot size of 4000m2 for the site, s 6.5 states that consent may be granted to the subdivision of land within this zone if the land is subdivided in accordance with the Community Land Development Act 1989 (NSW) for a neighbourhood scheme; each lot will not be less than 600m2, and the subdivision will not result in more than 7.5 development lots per hectare. The proposed development complies with this.

19. Pursuant to s 6.1 of the Precinct Plan the parties submit, and I accept that adequate arrangements have been made to make the public utility infrastructure that is essential for the proposed development available when required.

20. Part 6.3.3 of the BDAR addresses the requirements of Precinct Plan s 6.3(6) and confirms that the requirements relating to the disturbance of native vegetation in this clause are met.

21. The parties also submit, and I accept that they have had regard to the objectives for development in the C4 Environmental Living zone pursuant to s 6.3(7) of the precinct plan.

Conclusion

22. 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, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. The Court notes:

24. The respondent, as the relevant consent authority, agrees under section 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the applicant amending Development Application No. 739/2024/ZD in accordance with the documents set out in the Schedule at Annexure B.

25. The Court orders:

26. The Appeal is upheld.

27. Development Application No. 739/2024/ZD for a staged subdivision creating 21 community title residential lots and one community associated lot at Lots 5 and 6 in DP568873, is determined by the grant of consent subject to the conditions set out in Annexure A to this agreement.

28. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) (as agreed or assessed).

E Washington

Commissioner of the Court

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Annexure A (1.87 MB, pdf)

Annexure B (122 KB, pdf)