Archidrome Pty Ltd v Blacktown City Council

[2023] NSWLEC 1393

Land and Environment Court

New South Wales

Medium Neutral Citation:

Archidrome Pty Ltd v Blacktown City Council [2023] NSWLEC 1393

Hearing dates:

Conciliation conference on 21 July 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The application is granted.

(2) Development Consent No. DA-21-00897 is modified in the terms at Annexure A.

(3) As a consequence of Order (2), Development Consent No. DA-21-00897 is subject to the consolidated, modified conditions of consent at Annexure B.

Catchwords:

APPLICATION – an application to modify a consent granted by the Court – residential subdivision -conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55

Environmental Planning and Assessment Regulation 2021, cll 100, 113

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Precincts—Central River City) 2021, Appendix 11

Cases Cited:

Archidrome Pty Ltd v Blacktown City Council [2022] NSWLEC 1087

Category:

Principal judgment

Parties:

Archidrome Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
A Scully (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/28286

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an application made to the Court to modify the development consent granted in Archidrome Pty Ltd v Blacktown City Council [2022] NSWLEC 1087 for the subdivision of land and construction of dwelling houses at 95 Tallawong Rd, Rouse Hill. The development consent includes the construction of 50 two-storey dwellings, a 53-lot subdivision, civil and drainage works, and the construction of community title lots, private roads and public roads. The application seeks to modify the consent by changing the onsite detention design, making a minor change to the setback of one lot, changing the size of one lot and incorporating a building envelope plan, and replacing the community title lots with Torrens title lots. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the modification application pursuant to s 4.55(1A) of the EPA Act. The final orders on the application, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 July 2023. I presided over the conciliation conference.

3. 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 signed agreement was reached following the approval by the respondent, as the consent authority as defined under the EPA Act, of an amendment to the modification application pursuant to cl 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments made in the amended modification application were to achieve consistency between the engineering concept plans and the subdivision layout plans. The signed agreement is supported by an agreed jurisdictional statement, in which the parties address the applicable statutory planning framework and the jurisdictional issues that arise.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(1A) of the EPA Act. 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 the proposed modification is of minimal environmental impact, and the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions on the basis that the modification is confined to changing the onsite stormwater drainage, altering one of the lot sizes and changing the type of subdivision from community title to Torrens title for part of the development, such that the essential elements of the subdivision, road and dwelling design remain and the physical changes relate to only matters of detail concerning peripheral aspects of the proposed development. The changes will not have any impact on the natural and built environment of the locality. Further, I am satisfied that the notification requirements of s 4.55(1A)(c) have been met. No submissions were received.

5. Consistent with the requirements of cl 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 24 January 2023.

6. I note also that the proposed development, as modified, remains compliant with the development controls in the Blacktown Growth Centres Precinct Plan in Appendix 11 of the State Environmental Planning Policy (Precincts - Central River City) 2021, as set out in the parties’ agreed jurisdictional statement.

7. 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)).

8. 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 4.55(3) of the EPA Act.

9. The Court notes that:

1. The Respondent as the relevant consent authority, under section 113 of the Environmental Planning and Assessment Regulation 2021, agrees to the Applicant amending the Modification Application for which consent is sought in accordance with the documents described in the below table.

Plans		Date
Civil Engineering Plans prepared by Group Development Services
1.	Cover Sheet, Locality Plan and Drawing Schedule - Rev E	5 July 2023
2.	General Notes - Rev E	5 July 2023
3.	General Arrangement Plan - Rev E	5 July 2023
4.	Existing Site Survey and Services - Rev E	5 July 2023
5.	Demolition and Tree Removal/Retention Plan - Rev E	5 July 2023
6.	Erosion and Sediment Control Plan - Rev E	5 July 2023
7.	Erosion and Sediment Control Details - Rev E	5 July 2023
8.	Cut and Fill Earthworks Plan - Rev E	5 July 2023
9.	Site Sections Sheet 1 - Rev E	5 July 2023
10.	Site Sections Sheet 2 - Rev E	5 July 2023
11.	Site Sections Sheet 3 - Rev E	5 July 2023
12.	Stormwater Post Development Catchment Plan - Rev E	5 July 2023
13.	Stormwater Pre Development Catchment Plan - Rev E	5 July 2023
14.	Civil Works and Stormwater Drainage Plan Sheet 1 - Rev E	5 July 2023
15.	Civil Works and Stormwater Drainage Plan Sheet 2 - Rev E	5 July 2023
16.	Pavement, Signage and Linemarking Plan - Rev E	5 July 2023
17.	OSD Basin Access Ramp Turning Path Plan - Rev D	5 July 2023
18.	Detention Basin-A Plan and Details - Rev E	5 July 2023
19.	Stormwater Drainage Details (Sheet 1 of 2) - Rev E	5 July 2023
20.	Stormwater Drainage Details (Sheet 2 of 2) - Rev E	5 July 2023
21.	Stormwater Longitudinal Sections (Sheet 1 of 9) - Rev E	5 July 2023
22.	Stormwater Longitudinal Sections (Sheet 2 of 9) - Rev E	5 July 2023
23.	Stormwater Longitudinal Sections (Sheet 3 of 9) - Rev E	5 July 2023

10. The Court orders that:

1. The application is granted.

2. Development Consent No. DA-21-00897 is modified in the terms at Annexure A.

3. As a consequence of Order (2) Development Consent No. DA-21-00897 is subject to the consolidated, modified conditions of consent at Annexure B.

J Gray

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 21 July 2023