Anglican Church Property Trust Diocese of Sydney v Blacktown City Council

[2021] NSWLEC 1674

Land and Environment Court

New South Wales

Medium Neutral Citation:

Anglican Church Property Trust Diocese of Sydney v Blacktown City Council [2021] NSWLEC 1674

Hearing dates:

Conciliation conference on 21 October 2021

Date of orders:

08 November 2021

Decision date:

08 November 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [16]

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Blacktown Local Environmental Plan 2015

Environmental Planning and Assessment Act 1979, ss 4.55(1A), 8.9

Environmental Planning and Assessment Regulation 2000, cl 121B

Land and Environment Court Act 1979, s 34

Texts Cited:

Blacktown Development Control Plan 2015

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Anglican Church Property Trust Diocese of Sydney (Applicant)
Bankstown City Council (Respondent)

Representation:

Counsel:
M Cottom (Solicitor) (Applicant)
S Schneider (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Houston Dearn O’Connor Lawyers (Respondent)

File Number(s):

2021/206077

Publication restriction:

No

Judgment

1. COMMISSIONER: Anglican Church Property Trust Diocese of Sydney (the Applicant) has appealed the refusal, initially a deemed refusal and subsequently an actual refusal, by Blacktown City Council (the Respondent) of its modification application (MOD-21-00230) seeking to modify a consent for demolition of existing structures, the removal of trees, site preparation works and the construction of a place of public worship in 3 stages, including signage, 128 parking spaces & associated stormwater works & landscaping (the Approved Development) at 49 to 51 Excelsior Avenue, Marsden Park (the Subject Site).

2. The Proposed Modification made pursuant to the provisions of s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act) seeks to alter the stormwater design, raise ground levels within the carpark, provide retaining walls to the northern boundary, relocate the proposed driveway and adjust landscaping in order to meet deferred commencement engineering conditions

3. The Subject Site is zoned RU4 Rural Small Holdings under Blacktown Local Environmental Plan 2015.

4. The appeal comes to the Court pursuant to s 8.9 of the EP&A Act and falls within Class 1 of the Court’s jurisdiction.

5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 21 October 2021, and I presided over the conciliation conference.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference.

7. 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 and granting consent to the Applicant’s development application, subject to conditions.

8. 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 a decision that the Court could have made in the proper exercise of its functions.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of s 4.55(1A) of the EP&A Act, the Parties have agreed, as confirmed within the Applicant’s Statement of Environmental Effects (the SEE) prepared by Levy Planning and dated 19 May 2021, and I accept, that:

1. the Proposed Modification is of minimal environmental impact;

2. the Approved Development to which the Consent as modified relates is substantially the same development as the development for which the consent was originally granted;

3. the matters referred to in s 4.15(1) of the EP&A Act that require assessment in relation to the Proposed Modification remain unchanged with respect to the matters addressed in the SEE;

4. the Proposed Modification has been notified in accordance with the Blacktown Development Control Plan 2015, and the Parties have considered matters raised in submissions received in response to the notification; and

5. the Parties have taken into consideration the reasons given by the Panel in granting consent to the Approved Development in reaching agreement to resolve contentions in this matter.

10. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.55(1A) of the EP&A Act.

11. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(1A) of the EP&A Act have been so satisfied.

12. I am further 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.

13. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

14. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

15. The Court notes:

1. the Blacktown City Council, as the relevant consent authority, has agreed, under cl 121B of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending its application to modify consent (SP-18-00005) to rely upon the following amended plans:

1. Architectural plans prepared by Fulton Trotter Architects, dated 6 September 2021:

1. DA-103 Proposed Site Plan, Revision G;

2. DA-106 Site Plan – Stage 3, Revision D;

3. DA106A Site Sections – Stage 3, Revision B.

2. Landscape plans prepared by Xeriscapes, dated 8 September 2021:

1. L000 Cover Sheet, Revision P;

2. L101 Landscape Plan Stage 1A + 1B, Revision M;

3. L102 Landscape Plan Stage 2, Revision M.

3. Engineering drawings prepared by Martens & Associates Pty Ltd:

1. PS02-A000 Cover Sheet, Revision S, dated 1 October 2021;

2. PS02-C100 Earthworks Plan (Stage 1A, 1B & 2), Revision Q, dated 1 October 2021;

3. PS02-C101 Earthworks Plan (Stage 3), Revision B, dated 1 September 2021;

4. PS02-C110 Earthworks Plan (Stage 1A, 1B & 2) Level Spreader Details, Revision A, dated 1 October 2021;

5. PS02-C500 Earthworks Cut & Fill Plan (Stage 1A, 1B & 2), Revision Q, dated 1 October 2021;

6. PS02-C600 Earthwork Sections (Sheet 1), Revision J, dated 1 October 2021;

7. PS02-C601 Earthwork Sections (Sheet 2), Revision C, dated 1 October 2021;

8. PS02-C602 Earthwork Sections (Sheet 3), Revision A, dated 1 September 2021;

9. PS02-E100 Drainage Plan (Stage 1A & 1B), Revision R, dated 1 October 2021;

10. PS02-E101 Drainage Plan (Stage 2), Revision L, dated 1 October 2021;

11. PS02-E200 OSD 1 (Tank) Detailed Plan – Stage 1A, Revision M, dated 1 September 2021;

12. PS02-E201 OSD 1 (Tank) Detailed Plan – Stage 1B, Revision H, dated 1 September 2021;

13. PS02-E202 OSD 2 (Basin) Detailed Plan – Stage 1B, Revision I, dated 1 September 2021;

14. PS02-E203 Bioretention Vegetation, Revision F, dated 1 September 2021;

15. PS02-E204 Bioretention Basins Layout, Revision D, dated 1 September 2021;

16. PS02-E210 Drainage Details, Revision B, dated 1 September 2021;

17. PS02-E300 Drainage Longitudinal Sections (Sheet 1), Revision J, dated 1 October 2021;

18. PS02-E301 Drainage Longitudinal Sections (Sheet 2), Revision E, dated 1 September 2021;

19. PS02-E305 Drainage Longitudinal Sections (Sheet 3) & Pit Schedule, Revision J, dated 1 October 2021;

20. PS02-E600 On-Site Detention Calculation, Revision M, dated 1 September 2021;

21. PS02-E700 Water Quality Catchment Plan, Model & Result (Stage 1A & 1B), Revision M, dated 1 September 2021.

2. the Respondent has confirmed that the amended application was uploaded to the NSW planning portal on 27 October 2021;

3. the Applicant subsequently filed the amended application with the Court.

Orders

16. The Court orders:

1. the appeal is upheld.

2. the application (as amended) for modification of the consent for demolition, removal of trees, site preparation works, and the construction of a Place of public worship in 3 stages, signage, 128 parking spaces and associated stormwater works and landscaping on the land described as Lot 9 in DP 1225976 known as 49-51 Excelsior Avenue, Marsden Park is determined by approval.

3. the consent is modified in the terms in Annexure ‘A’.

4. the consent as modified by the Court is Annexure ‘B’.

17. The Respondent is directed to upload the development consent to the Planning Portal within 7 days of this judgment.

………………………..

M Chilcott

Commissioner of the Court

Annexure A (198808, pdf)

Annexure B (530772, pdf)

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Decision last updated: 08 November 2021