Aliya Grace Pty Ltd v Blacktown City council

[2023] NSWLEC 1753

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aliya Grace Pty Ltd v Blacktown City council [2023] NSWLEC 1753

Hearing dates:

Conciliation conference on 23 November 2023

Date of orders:

12 December 2023

Decision date:

12 December 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendment, as agreed or as assessed.

(2) The appeal is upheld.

(3) Development application DA-22-01525 seeking consent for Torrens title subdivision to create 14 lots, construction of new roads and temporary turning heads, tree removal, and associated civil works at Lots 1-6 and Lots 39-44 in Section 45 of DP 1480 at the corner of Otago Street, Clyde Street and Brisbane Road, Vineyard, is approved subject to the conditions set out in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – subdivision – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, Div 4.8, ss 4.16, 4.47, 8.7, 8.15,

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 6.65, 9.4, 9.5

State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 7, ss 2.6, 4.1AB, 4.1AD, 4.1B, 6.1, 6.8

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Aliya Grace Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
P Lalich (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/26403

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal by Blacktown City Council of development application DA-22-01525 which seeks consent for Torrens title subdivision to create 14 lots, construction of new roads and a temporary turning head, tree removal, and associated civil works, at Lots 1-4 and Lots 41-44 in Section 45 of DP 1480 at the corner of Otago Street, Clyde Street and Brisbane Road, Vineyard.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) and were listed for hearing on 23 November 2023.

3. Prior to the commencement of this hearing, the parties requested a further listing for a conciliation conference between the parties, which the Court arranged under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 23 November 2023. I presided over the conciliation conference.

4. After 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.

5. The decision also involved the amendment of the development application to incorporate additional lots in order to provide temporary turning heads and a temporary Asset Protection Zone (APZ) in adjoining lots. The resulting subject site consists of Lots 1-6 and Lots 39-44 in Section 45 of DP 1480.

6. 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 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, however 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 for the following reasons I accept that these prerequisites have been satisfied.

7. The Class 1 application has been made with the consent of the owners of Lots 41-44 and 1-4, and further owner’s consent has been provided for works to Lots 5-6 and Lots 39-40 of Section 45 of DP 1480.

8. The development application was adequately notified between 10 January and 25 January 2023. No submissions were received.

9. Pursuant to Div 4.8 of the EPA Act, the development application is integrated development that requires referral to the NSW Rural Fire Service (RFS). General terms of approval under s 100B of the Rural Fires Act 1997 were issued by the RFS on 16 March 2023 which, in accordance with s 4.47(3) of the EPA Act, have been incorporated into the agreed conditions of consent.

10. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, the Preliminary Site Investigation Report prepared by Sydney Environmental Group, dated 12 October 2022, confirms that the subject site has low potential for contamination, and the site is considered suitable for the proposed development.

11. As the development application was lodged on 14 November 2022 but not finally determined as of 21 November 2022 and due to the savings provisions in s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), Ch 9 of the Biodiversity and Conservation SEPP, as in force prior to 20 November 2022, applies to the site. This chapter aims to protect the environment of the Hawkesbury Nepean River system by ensuring that the impacts of future land uses are considered in a regional context.

12. Subsequently, pursuant to the requirements of the Biodiversity and Conservation SEPP, the parties submit, and I accept that the proposed development is consistent with the aims of Ch 9, and that the general planning considerations of s 9.4 and relevant parts of s 9.5 have been considered and adequately addressed in this application.

13. State Environmental Planning Policy (Precincts – Central River City) 2021 – Appendix 7: Alex Avenue and Riverstone Precinct Plan (Precinct Plan) applies to the land. Pursuant to this Precincts Plan, the site is zoned R2 Low Density Residential, within which development for the purposes of dwelling houses and multi-dwelling houses are permissible with consent. The proposed development meets all relevant objectives of this zone.

14. Pursuant to s 2.6 of the Precinct Plan, subdivision is permissible with consent.

15. The development proposal includes 10 lots of an area less than 300m², and 4 lots with an area over 300m². Pursuant to s 4.1AB(3) of the Precinct Plan a minimum lot size of 300m² applies to the site, however an exception is established under s 4.1AD(2) which permits lot sizes less than 300m², subject to the applicant demonstrating that the lot contains a sufficient building envelope to enable the erection of a dwelling house. Based on the parties submission and the submitted plans, I accept that the applicant has demonstrated this for all relevant lots.

16. Pursuant to s 4.1B of the Precinct Plan, the proposed subdivision results in a dwelling density of 22 dwellings per hectare, which complies with the minimum density of 15 dwellings per hectare.

17. The parties submit and I accept that, based on the information provided in the Statement of Environmental Effects, adequate arrangements have been made to ensure the development will be supplied with all essential services, in accordance with s 6.1 of the Precincts Plan.

18. Pursuant to the requirements of s 6.8(2), the subject site is located within the Riverstone Scheduled Land and subsequently, as demonstrated on the Lot Layout Plan prepared by Group Development Services, no lot fronting a public road exceeds the maximum lot depth of 35m.

19. 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.

20. 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.

21. The Court notes:

1. The Respondent, as the relevant consent authority under section 37 of the Environmental Planning and Assessment Regulation 2021, agrees to the Applicant amending development application DA-22-01525 for in accordance with the documents described in the Schedule.

22. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendment, as agreed or assessed.

2. The appeal is upheld.

3. Development application DA-22-01525 seeking consent for Torrens title subdivision to create 14 lots, construction of new roads and temporary turning heads, tree removal, and associated civil works at Lots 1-6 and Lots 39-44 in Section 45 of DP 1480 at the corner of Otago Street, Clyde Street and Brisbane Road, Vineyard, is approved subject to the conditions set out in Annexure A to this agreement.

……………………….

E Washington

Acting Commissioner of the Court

Schedule (112191, pdf)

Annexure A (444365, pdf)

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Decision last updated: 12 December 2023