BRL Developments Pty Ltd v Camden Council

[2023] NSWLEC 1292

Land and Environment Court

New South Wales

Medium Neutral Citation:

BRL Developments Pty Ltd v Camden Council [2023] NSWLEC 1292

Hearing dates:

Conciliation conference held on 2 June 2023

Date of orders:

14 June 2023

Decision date:

14 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

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

(2) The appeal is upheld.

(3) Development Application No. 2022/636/1, as amended, for the Torrens title subdivision of land into two (2) super lots and one (1) SP2 Infrastructure (local road) lot, construction and dedication of public roads, tree removal, stormwater and associated site works, on land legally described as Lot Y in DP 399114 and known as 142 Byron Rod, Leppington NSW 2179, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy Amendment (Water Catchments) 2022, s 6.65

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, 7, 8, 9, 10, 11, 12

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 5, ss 1.3, 2.2, 2.6

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

Category:

Principal judgment

Parties:

BRL Developments Pty Ltd (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
K Huxley (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Holding Redlich (Respondent)

File Number(s):

2022/299489

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Camden Council (the Council) of Development Application No 2022/636/1 for the Torrens title subdivision into 2 super lots and one SP2 infrastructure (local road) lot, construction and dedication of public roads, tree removal, stormwater and associated site works (the proposal). Development is proposed on land described as Lot Y in DP 399114 and known as 142 Byron Road, Leppington NSW 2179 (the site).

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

3. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, to include the amended plans and documents listed under schedule B, Condition 1.0(1) of the conditions of consent at Annexure A.

Jurisdictional pre-requisites

6. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 is in the following terms:

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

7. A Stage 1 Preliminary Site Contamination Investigation Report was prepared for the site and concludes that the site is considered to have a low risk of soil and groundwater contamination. I accept that the site is suitable for the proposed development.

8. The repealed Chs 6 to 12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) apply to the application (s 6.65 of the State Environmental Planning Policy Amendment (Water Catchments) 2022). The site is located within the Hawkesbury-Nepean Catchment for the purposes of Ch 9 of the BC SEPP prior to its amendment. I accept the parties’ agreement that the amended application satisfactorily addresses the relevant matters for consideration in the BC SEPP.

9. The State Environmental Planning Policy (Precincts – Western Parkland City) 2021 applies to the amended application. The site is within the Camden Growth Centres Precinct Plan (CGCPP) area of the Leppington North Precinct (Appendix 5, s 1.3).

10. Pursuant to s 2.2 of the CGCPP site is zoned R3 Medium Density Residential and part SP2 Infrastructure (Local Road). Subdivision is permissible under s 2.6. The amended application satisfied s 6.1 by demonstrating that water, sewer, electricity, and telecommunication services can be made available to the site. The services will be connected to the proposed development in accordance with the relevant authority requirements, according to the Statement of Environmental Effects.

Conclusion

11. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 2 June 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

12. The orders of the Court are:

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

2. The appeal is upheld.

3. Development Application No 2022/636/1, as amended, for the Torrens title subdivision of land into two (2) super lots and one (1) SP2 Infrastructure (local road) lot, construction and dedication of public roads, tree removal, stormwater and associated site works, on land legally described as Lot Y in DP 399114 and known as 142 Byron Road, Leppington NSW 2179, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A

Decision last updated: 14 June 2023