Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24

Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24

The Court was satisfied that the jurisdictional objection based on inconsistency with the concept development consent could be resolved through the statutory modification pathway identified by the Applicant and accepted by the Council. After further revisions to the cl 4.6 requests and the design excellence...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 March 2023
Procedural Posture
Class 1 Appeals Concerning a Proposed Amendment to a Concept Development Approval and a Development Application for Residential Flat Buildings / Principal Judgment Giving Reasons for Orders Resolving the Appeals and Granting Development Consent Subject to Conditions
Outcome
The appeals were resolved by orders modifying the concept development approval and upholding the appeal in Matter No 174536 of 2022, with development consent granted subject to conditions.
Legal Topics
['concept Development Consent' 'modification or Surrender of Development Consent' 'inconsistency With Concept Proposals' 'exceptions to Development Standards' 'maximum Building Height' 'design Excellence' 'residential Flat Buildings']
['planning and Environment Law' 'development Consent' 'local Environmental Planning'] ['concept Development Consent' 'modification or Surrender of Development Consent' 'inconsistency With Concept Proposals' 'exceptions to Development Standards' 'maximum Building Height' 'design Excellence' 'residential Flat Buildings']

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Procedural Posture

Class 1 Appeals Concerning a Proposed Amendment to a Concept Development Approval and a Development Application for Residential Flat Buildings / Principal Judgment Giving Reasons for Orders Resolving the Appeals and Granting Development Consent Subject to Conditions

Legal Issues

  1. 1 ['Whether the proposed applications could be approved despite alleged inconsistency with the existing concept development consent under s 4.24(2) of the Environmental Planning and Assessment Act 1979.' 'Whether dispensation from the 21 metre maximum building height development standard under cl 4.3 of the LEP should be granted under cl 4.6 of the LEP.' 'Whether the Court had adequate material to consider the design excellence matters in cl 9.5(4) of the LEP.' 'Whether development consent should be granted for Development Application 1112/2022/JP after the resolution of merit issues and provision of required documents.']

Ratio Decidendi

The Court was satisfied that the jurisdictional objection based on inconsistency with the concept development consent could be resolved through the statutory modification pathway identified by the Applicant and accepted by the Council. After further revisions to the cl 4.6 requests and the design excellence material, the Court was also satisfied that the mandatory cl 4.6 tests and cl 9.5(4) considerations were met. With merit issues resolved, required documents provided, and no remaining impediment to approval, it was appropriate to make orders modifying the concept development approval and granting development consent to the second application subject to conditions.

Court Disposition

The appeals were resolved by orders modifying the concept development approval and upholding the appeal in Matter No 174536 of 2022, with development consent granted subject to conditions.

Orders

  • ['Leave is granted to the Applicant to rely on the amended plans and documents contained in Exhibit C.' 'Leave is granted to the Applicant to rely on BASIX Certificate No. E21074, prepared by Credwell Energy, dated 15/03/2023; NatHERS Certificate No. 6872190, prepared by Credwell Energy, dated 15/03/2023; and BASIX...