Bulk Resources Management Pty Ltd v Penrith City Council

[2020] NSWLEC 1142

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bulk Resources Management Pty Ltd v Penrith City Council [2020] NSWLEC 1142
Hearing dates:	Conciliation conference on 13 March 2020
Date of orders:	27 March 2020
Decision date:	27 March 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The Appeal is upheld. (2) The terms of the Development Control Order are modified as set out in Annexure ‘A’. (3) The Court notes the following undertakings given to the Respondent: (a) Allen Romel and Michael Menon agree on behalf of the Applicant to procure all necessary steps to be undertaken by the Applicant to carry out all works and activities listed in the attached Development Control Order; (b) On or before 7 July 2020, the Applicant shall use its best endeavours to terminate the lease of the property known as 1725-1743 Elizabeth Drive, Badgerys Creek.
Catchwords:	DEVELOPMENT CONTROL ORDERS – waste or resource management facility – cessation of use – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Bulk Resources Management Pty Ltd (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: B Lennox (Solicitor) (Applicant) Pearce (Solicitor) (Respondent)   Solicitors: Storey and Gough (Applicant) Penrith City Council (Respondent)
File Number(s):	2019/294706
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against two development control orders given by the Penrith City Council (hereafter the Council) that relate to the cessation of use of a waste or resource management facility and remediation works on Lot 4 DP 860456, also known as 1725-1743 Elizabeth Drive, Badgerys Creek (hereafter the site).

2. The Council issued two development control orders (the orders) on 20 March 2019, as follows:

1. Order 1 is a ‘Stop Use Order’ as a waste or resource management facility, and

2. Order 10 is a ‘Restore Works Order’ for the condition of the land to pre-existing condition.

3. This Class 1 appeal is made under s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the orders relating to the site.

4. The Court agreed to the parties request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 13 March 2020, in Court. No objectors were heard at the conciliation, although the Court was advised by the parties that the residents, whom first raised concerns regarding use on the site, are now satisfied by the proposed orders in the agreement.

5. Based on the amended orders, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and resolved. The decision of the parties is to seek the Court to modify the (Development Control) Orders 1 and 10. The parties agree that the terms of the orders are either already complied with or capable of being complied within the time frames identified.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 8.18(4)(b) of the EPA Act, to modify the orders, as described in Annexure ‘A’.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, as consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); and Penrith Local Environmental Plan 2010 (PLEP).

8. The parties agree that the requirements of SEPP 55 and the provisions of the PLEP are satisfied by the proposed terms of the orders.

9. Specifically, in consideration of the requirements of SEPP 55, the amended orders provide for remediation work following the cessation of the activity, the subject of the order. By the making of the orders, the parties agree that the relevant requirements of the SEPP 55 are satisfied and that the Court should not be constrained to modify the orders as amended.

10. The amended terms of the orders have been considered in the context of the site. Therefore, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties.

11. Based on the information before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the modification of the orders 1 and 10, as it satisfies the requirements of s 4.18 of the EPA Act.

12. 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.

13. The Court orders:

1. The Appeal is upheld.

2. The terms of the Development Control Order are modified as set out in Annexure ‘A’.

3. The Court notes the following undertakings given to the Respondent:

1. Allen Romel and Michael Menon agree on behalf of the Applicant to procure all necessary steps to be undertaken by the Applicant to carry out all works and activities listed in the attached Development Control Order;

2. On or before 7 July 2020, the Applicant shall use its best endeavours to terminate the lease of the property known as 1725-1743 Elizabeth Drive, Badgerys Creek.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (273 KB)

**********