26 Hume Avenue Holding Pty Ltd v The Hills Shire Council [2026] NSWLEC 1366

Catchwords: APPEAL — residential flat building — conciliation conference — agreement reached — orders made Land and Environment Court New South Wales Medium Neutral Citation: 26 Hume Avenue Holding Pty Ltd v The Hills Shire Council [2026] NSWLEC 1366 Hearing dates: Hearing and Conciliation conference on 1 and 2 June 2026 Date of orders: 18 June 2026 Decision date: 18 June 2026 Jurisdiction: Class 1 Before: Miller AC Decision: The Court orders that: (1) The a ppeal is upheld. (2) Development A pplicat i on No 429 / 2025/HA , as amended, for the demolition of existing structures and construction of a six storey residential flat building for 27 residential units, two levels of basement parking and removal of 8 trees at 7 1 Cecil Avenue and 26 Hume Avenue, Castle Hill ( Lot s 2 and 3 in Deposited P lan 211403 ) is determined by the grant of consent subject to the conditions at A nnexure A. Catchwords: APPEAL — residential flat building — conciliation conference — agreement reached — orders made Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) , ss 2.22, 4.15, 4.16, 8.7, Sch 1 Land and Environment Court Act 1979 (NSW) , s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 37, 38, Sch 7 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.13 State Environmental Planning Policy (Housing) 2021 , Ch 4, 6, ss 145, 147 , 148, 177, 180 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1, Sch 1 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 The Hills Local Environmental Plan 2019, cll 2.3, 2.7, 4.1A, 4.3, 4.6, 5.21, 7 .2 Texts Cited: NSW Department of Planning, Housing and Infrastructure, Tree Canopy Guide for Low and Mid Rise Housing, 2025 Category: Principal judgment Parties: 26 Hume Avenue Holding Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: R White (Applicant) T Ward (Solicitor) (Respondent) Solicitors: Dentons Australia (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2025/420917 Publication restriction: Nil JUDGMENT COMMISSIONER : This appeal concerns a development application 429/2025/HA for the demolition of existing structures and construction of a seven storey residential flat building comprising 27 residential units and 4 independent living units (seniors housing), two levels of basement parking for 35 vehicles and removal of 8 trees at 71 Cecil Avenue and 26 Hume Avenue, Castle Hill (Lots 2 and 3 in Deposited Plan 211403) (the s ite) . The applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of the development application on 31 October 2025. Leave was granted by the Court to amend the application on 1 4 April 2026 to , among other matters , reduce the height of the building by one storey and remove the seniors housing component . The application before the Court then is for the demolition of existing structures and construction of a six storey residential flat building comprising 27 residential units, two levels of basement parking and removal of 8 trees . This matter commenced as a hearing however the parties, having reached agreement, requested that the matter be relisted as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The request was granted and the conciliation conference was held on 1 June 2026. I presided over the conciliation conference. Outcome At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed with the Court on 2 June 2026 . The agreement follows the Council ’ s approval of further amendment s to the development application pursuant to s 38 (1) of the Environmental Planning and Assessment Regulation 2021 ( NSW ) (EPA Reg). The amended plans and documents comprising the application are as follows: Architectural Plans Drawing number Issue Plan title Drawn by Date of plan DA 001 E Cover Page WMK Architecture 21/05/2026 DA 002 E Site Analysis WMK Architecture 21/05/2026 DA 005 E Site Plan WMK Architecture 21/05/2026 DA 006 E Demolition Plan WMK Architecture 21/05/2026 DA 010 E Development Summary WMK Architecture 21/05/2026 DA 100 E Basement 02 WMK Architecture 21/05/2026 DA 101 E Basement 01 WMK Architecture 21/05/2026 DA 102 E Ground Floor WMK Architecture 21/05/2026 DA 103 E Level 01 WMK Architecture 21/05/2026 DA 104 E Level 02 WMK Architecture 21/05/2026 DA 105 E Level 03 WMK Architecture 21/05/2026 DA 106 E Level 04 WMK Architecture 21/05/2026 DA 107 E Level 05 WMK Architecture 21/05/2026 DA 108 E Roof Level WMK Architecture 21/05/2026 DA 150 E Elevation – East WMK Architecture 21/05/2026 DA 151 E Elevation – West WMK Architecture 21/05/2026 DA 152 E Elevation – South WMK Architecture 21/05/2026 DA 153 E Elevation – North WMK Architecture 21/05/2026 DA 200 E Sections – North South WMK Architecture 21/05/2026 Architectural Plans DA 201 E Sections – East West WMK Architecture 21/05/2026 DA 250 E Materials Board WMK Architecture 21/05/2026 DA 1051 E Adaptable Units – Pre and Post WMK Architecture 21/05/2026 Flood Mitigation Drawings FM1 C Cover Sheet & Notes Hydracor Consulting Engineers 18/05/2026 FM2 C Flood Mitigation Plan Hydracor Consulting Engineers 18/05/2026 FM3 C Overland Flow Path Long Section Hydracor Consulting Engineers 18/05/2026 FM4 C Overland Flow Path Cross Sections – Sheet No. 1 Hydracor Consulting Engineers 18/05/2026 FM5 C Overland Flow Path Cross Section – Sheet No. 2 Hydracor Consulting Engineers 18/05/2026 Council Stormwater Infrastructure Realignment Drawings E1 C Cover Sheet & Notes Hydracor Consulting Engineers 18/05/2026 E2 C Council Stormwater Realignment Plan Hydracor Consulting Engineers 18/05/2026 E3 C Existing Drainage Long Sections Hydracor Consulting Engineers 18/05/2026 E4 C Proposed Drainage Long Sections Hydracor Consulting Engineers 18/05/2026 E5 C Stormwater Schematic Plan Hydracor Consulting Engineers 18/05/2026 E6 C Existing Stormwater Long Section Hydracor Consulting Engineers 18/05/2026 E9 C Proposed Stormwater Long Section (825 DIA) Hydracor Consulting Engineers 18/05/2026 Stormwater Management Plans C1 D Cover Sheet & Notes Hydracor Consulting Engineers 18/05/2026 Stormwater Management Plans C2 D Stormwater Management Plan – Ground Floor Hydracor Consulting Engineers 18/05/2026 C3 D Stormwater Management Plan – Basement 01 Hydracor Consulting Engineers 18/05/2026 C4 D Stormwater Management Plan – Basement 02 Hydracor Consulting Engineers 18/05/2026 C5 D Stormwater Management Details Sheet No. 1 Hydracor Consulting Engineers 18/05/2026 C6 D Stormwater Management Details Sheet No. 2 Hydracor Consulting Engineers 18/05/2026 C7 D Stormwater Management Details Sheet No. 3 Hydracor Consulting Engineers 18/05/2026 C8 D Stormwater Management Details Sheet No. 4 Hydracor Consulting Engineers 18/05/2026 C9 D Stormwater Management Details Sheet No. 5 Hydracor Consulting Engineers 18/05/2026 C10 D OSD Maintenance Schedule & Calculation Sheet Hydracor Consulting Engineers 18/05/2026 C11 D OSD Checklist Sheet 1 of 2 Hydracor Consulting Engineers 18/05/2026 C12 D OSD Checklist Sheet 2 of 2 Hydracor Consulting Engineers 18/05/2026 C13 D Stormwater Quality Report Sheet 1 of 3 Hydracor Consulting Engineers 18/05/2026 C14 D Stormwater Quality Report Sheet 2 of 3 Hydracor Consulting Engineers 18/05/2026 C15 D Stormwater Quality Report Sheet 3 of 3 Hydracor Consulting Engineers 18/05/2026 C16 D Erosion & Sediment Control Notes Hydracor Consulting Engineers 18/05/2026 C17 D Erosion & Sediment Control Plan Hydracor Consulting Engineers 18/05/2026 Stormwater Management Plans C18 D Erosion & Sediment Control Detail Sheet Hydracor Consulting Engineers 18/05/2026 The decision agreed upon by the parties is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed a greement is supported by an agreed Jurisdictional Statement, which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert reports and the documents that are referred to in condition 1 of Annexure A . Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. Jurisdictional matters As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons outlined below. The Hills Local Environmental Plan 2019 The site is zoned R4 High Density Residential under The Hills Local Environmental Plan 2019 (THLEP). Development for the purposes of a residential flat building is permissible with consent in the R4 zone under THLEP. Further the parties advise , and I accept , that regard has been had to the zone objectives in accordance with cl 2.3. Development consent is sought for demolition in accordance with the requirements of cl 2.7 of THLEP. Clause 4.1A of THLEP applies to the proposed residential flat building and provides that a m inimum allotment size of 4,000m 2 applies to residential flat buildings in the R4 High Density residential zone. The proposed development does not comply with this provision having an allotment size of 1,565m 2 . A cl 4.6 variation has been submitted (Glyde Consulting, 2 June 2026) in this regard which the parties consider , and I accept, is well founded. Clause 4.3 of THLEP applies to the land and provides that the maximum applicable height is 16m. The proposed development does not comply with this provision having a maximum height of 24.7m. A cl 4.6 variation has been submitted (Glyde Consulting, 1 June 2026) in this regard which the parties consider, and I accept, is well founded . The site is within the flood planning area and is a flood controlled lot pursuant to cl 5.21 of THLEP. I am advised by the parties that that the matters required to be satisfied as specified by this provision, including in respect of flood function and behaviour, safe occupation and evacuation, risk to life impacts on the environment etc, have been satisfied on the basis of joint expert flooding report , the updated Flood Impact and Risk Assessment ( Hydracor Consulting Engineers, 18 May 2026) and the Flood Mitigation Drawings ( Hydracor Consulting Engineers, 18 May 2026) . Consideration has also been given to the matters required prior to the granting of development consent in respect of earthworks under cl 7 .2 of THLEP. In this re gard it is noted that a Geotechnical report ( Geotechnique , 2 September 2025 ) has been submitted with the Class 1 application which includes recommendations in respect of excavation and conditions of consent are proposed. State Environmental Planning Policy (Housing) 2021 Chapter 4 Design of residential apartment development of the State Environmental Planning Policy (Housing) 2021 (HSEPP) applies to the proposed development being a new residential flat building greater than 3 storeys in height and containing more than 4 apartments. Section 145 requires that the application be referred to a design review panel (if one exists in the local government area) for advice. Further s 147 requires consideration of the specified design principles, Apartment Design Guide and any advice provided by the Design Review Panel. A Design Verification Statement is also required. The parties advise, and I accept, that the requirements of s 145 and 147 have been met including having regard to the Design Verification Statement ( WMK Architects, 21 May 2026 ) . Section 148 of the HSEPP also applies and provides non-discretionary development standards for residential apartment development which the parties advi se the proposal complies with. The Court notes that while the application w as not lodged in accordance with Chapter 6 Low and m id r ise h ousing of the HSEPP , the site is located within the ‘ low and mid rise housing inner area ’ ( as a result of recent amendments to the SEPP ) . Section 177 therefore applies , requiring that consent must not be granted unless the consent authority has considered the Tree Canopy Guide for Low and Mid Rise Housing (Department of Planning, Housing and Infrastructure, February 2025) . The parties advise, and I accept that consideration has been given to this matter as required. Section 180 of the HSEPP also applies to the proposal being a residential flat building in the ‘ low and mid rise housing inner area ’ and provide s non-discretionary development standards in respect of maximum floor space ratio (FSR) and building height. The proposal complies with the FSR standard having an FSR of 1.92:1 where a maximum non-discretionary standard of 2.2:1 applies. The proposal does not however comply with the maximum non-discretionary standard of 22m for building height having a maximum height of 24.7m. A ccordingly a variation request (Glyde Consulting, 2 June 2026) in accordance with cl 4.6 of THLEP has been submitted which the parties consider , and I accept, is well founded. State Environmental Planning Policy (Sustainable Buildings) 2022 The proposal is BASIX development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. A BASIX Certificate has been submitted for the proposal (Certificate No 1811108M_02 ) prepared by ESD Synergy dated 1 April 2026. The Court note s that the parties advise that amendments to the proposal are not materially different such that they would require a new BA SIX certificate in accordance with s 37 of the EPA Reg. I f urther note that the BASIX c ertificate includes quantification of the embodied emissions of the proposal in accordance with s 2.1(5) of the SB SEPP. State Environmental Planning Policy (Resilience and Hazards) 2021 Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). A Detailed Site Investigation Report ( Geotechnique , 1 September 2025) was submitted with the application and conclude s that gross widespread contamination was not present at the site and that the site can be made suitable for the proposed residential use subject to the recommendations contained therein . Conditions of consent to this effect are proposed. Accordingly, the parties agree , and I accept, that the requirements of the RH SEPP have been satisfied. State Environmental Planning Policy (Transport and Infrastructure) 2021 The proposal was referred to Endeavour Energy on 19 September 2025 in accordance with the requirements of s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) the site being located within 5m of exposed overhead electricity power lines . Endeavour Energy provided a referral response including conditions of consent which have been included in the agreed draft conditions. Accordingly, I accept that the requirements of th is provision have been satisfied. State Environmental Planning Policy (Biodiversity and Conservation) 2021 The site falls within the Hawkesbury-Nepean Catchment under the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), such that Pt 6.2 applies to the development application. The parties advise, and I accept, that e vidence exists in the form of the joint expert stormwater and flooding report s, the stormwater and flood mitigation plans and the Flood Impact and Risk Assessment all prepared by Hyd r acor Consulting Engineering ( 18 May 2026 ) to satisfy the matters outlined in ss 6.6, 6.7 , 6.8 and 6. 13 of the BC SEPP as far as relevant. Sections 6.9 and 6.10 are not applicable to the subject development. I note conditions of consent in this respect , including notably in relation to on-site detention and water sensitive ur ban design , have also been included. Other Matters The development application is accompanied by owners ’ consent in accordance with s 23 of the EPA Reg. The application was notified by the Council in accordance with s 2.22 and Sch 1 of the EPA Act from 22 September to 13 October 2025 with six submissions being received. The amended application was also notified from 15 and 29 April 2026 and a further three submissions were received. The parties advise that consideration has been given to the issues raised in the submissions in reaching the agreement as required by s 4.15(1)(d) of the EPA Act . Conclusion Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “ dispose of the proceedings in accordance with the decision ” . The LEC Act also requires me to “ set out in writing the terms of the decision ” (s 34(3)(b)). In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Orders The orders of the Court are: The appeal is upheld. Development Application No 429/2025/HA, as amended, for the demolition of existing structures and construction of a six storey residential flat building comprising 27 residential units, two levels of basement parking and removal of 8 trees at 71 Cecil Avenue and 26 Hume Avenue, Castle Hill (Lots 2 and 3 in Deposited Plan 211403) is determined by the grant of consent subject to the conditions at Annexure A . H Miller Acting Commissioner of the Court Annexure A (1.09 MB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2026