Mogul Stud Pty Ltd v The Hills Shire Council

JUDGMENT

1. COMMISSIONER: This is an appeal brought by Mogul Stud Pty Ltd (Applicant) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of their development application by The Hills Shire Council. The development application, as amended, seeks consent for demolition and construction of a seven-storey mixed use development consisting of a café, business premises, gym, child care centre and office premises, with an adjoining four-storey car park, associated landscaping and vehicular and pedestrian access (Amended DA). The child care centre is proposed to accommodate 100 children across the age groupings. The development is proposed at 501 Mount Carmel Drive, Box Hill (Part Lot 106 in DP 1257660).
2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 10 March 2023. That conciliation conference was terminated on 5 June 2023, and the matter was listed for hearing.
3. Following the conciliation conference, the parties continued without prejudice discussions and on 26 October 2023 sought orders for a further conciliation conference. A further conciliation conference was listed for 9 November 2023. I presided over the further 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 for the development application, as amended, and granting development consent subject to the annexed conditions of consent.
4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. As required by s 23(1) of the Environmental Planning and Assessment Regulation 2021, the development application is lodged with the consent of the owners of the land. 2. The development application was notified and advertised between 2 and 23 September 2023. No submissions were received. 3. Pursuant to State Environmental Planning Policy (Planning Systems) 2021, the proposed development is classed as regionally significant development under Sch 6 as it has a capital investment value of more than 30 million. The Sydney Central Planning Panel has provided agreement for the development application to be determined through an agreement between the parties pursuant to s 34 of the LEC Act. 4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies. As required by s 4.6 of SEPP RH, consideration has been given as to whether the subject site is contaminated. The site has historically been vacant grassland which has been subject to earthworks pursuant to development consents. A Land Use Suitability Assessment accompanies the development application. That assessment concludes that the site is suitable for the proposed development. I accept that the site will be suitable for the proposed development. 5. Section 2.119(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as Lot 106 in DP 1257660 has frontage to Windsor Road which is a classified road. The parties agree and I accept that the proposed development satisfied the conditions of section 2.119(2) as follows: 1. Vehicular access to the proposed development will be via Mount Carmel Drive and Livermore Way, located to the north of Lot 106 in DP 1257660; 2. It will not have any adverse impact on the operation of Windsor Road; and 3. It will not be overly sensitive to traffic noise and is well setback from the adjacent roads. 1. As required by s 3.23 of SEPP TI in determining the development application, I have taken into consideration the applicable provisions of the Child Care Planning Guideline. The parties agree and I accept the following summary: