Carrington Clarke Group Pty Ltd v Goulburn Mulwaree Council

[2020] NSWLEC 1392

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carrington Clarke Group Pty Ltd v Goulburn Mulwaree Council [2020] NSWLEC 1392

Hearing dates:

Conciliation conference on 25 August 2020

Date of orders:

27 August 2020

Decision date:

27 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:
(1) The applicant is granted leave to rely upon the Letter of Offer to enter into a Voluntary Planning Agreement prepared by Michael Brown Planning Strategies and dated 17 August 2020, as amended on 21 August 2020.
(2) The appeal is upheld.
(3) Development Application No. 0171/1819 for the subdivision of Lots 1 and 2 in DP 1018139, Brayton Road, Marulan, into 16 residential lots and 1 residual lot, and the construction of associated infrastructure, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Goulburn Mulwaree Local Environmental Plan 2009

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

Category:

Principal judgment

Parties:

Carrington Clarke Group Pty Ltd (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
A Seton (Solicitor) (Applicant)
M Harker (Solicitor) (Respondent)

Solicitors:
Marsdens Law Group (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/146722

Publication restriction:

Nil

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 refusal of Development Application No. 0171/1819 for the subdivision into 16 residential lots and 1 residual lot, and the construction of associated infrastructure (the proposal) at Lots 1 and 2 in DP 1018139, Brayton Road, Marulan (the site) by Goulburn Mulwaree Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 August 2020. I presided over the conciliation conference.

3. 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.

4. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

Jurisdictional pre-requisites

6. The site is zoned R5 Large Lot Residential pursuant to Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009) and the proposal is permissible with consent, pursuant to cl 2.6(1) of LEP 2009. The objectives of the R5 zone, to which regard must be had, are:

• To provide residential housing in a rural setting while preserving environmentally sensitive locations and scenic quality.

• To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

• To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To facilitate and promote an increased range of residential opportunities by providing for low intensity residential development compatible with the rural characteristics of the locality.

• To encourage subdivision of land that is consistent with the constraints and opportunities of the land.

7. The proposal complies with the minimum lot size development standard pursuant to cl 4.1 of LEP 2009.

8. Development consent cannot be granted on land in the Sydney drinking water catchment unless the consent authority, or the Court exercising the functions of the consent authority, is satisfied that the proposal would have a neutral or beneficial effect on water quality, as required by cl 10 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011. I am satisfied, pursuant to the concurrence from Water NSW (condition 82) and the imposition of conditions 30, 72-78 and 82 on the development consent, that the carrying out of the proposal would have a neutral or beneficial effect on water quality.

9. I accept the agreed submission of the parties that the requirements imposed on the development consent by conditions 14, 28, 54-56 and 75 will make any public utility infrastructure that is essential for the proposal available prior to the issue of a subdivision certificate, as required by cl 7.3(2) of LEP 2009.

10. I accept the Council’s submission that Council’s staff has considered the applicant’s contamination report prepared by GeoEnviro Consultancy Pty Ltd (Class 1 Application tab 13) in relation to the requirements of cl 7(2) of State Environmental Planning Policy No 55 – Remediation of Land and no issues are raised by the proposal in relation to the remediation of the site.

Orders

11. The orders of the Court are:

1. The applicant is granted leave to rely upon the Letter of Offer to enter into a Voluntary Planning Agreement prepared by Michael Brown Planning Strategies and dated 17 August 2020, as amended on 21 August 2020.

2. The appeal is upheld.

3. Development Application No. 0171/1819 for the subdivision of Lots 1 and 2 in DP 1018139, Brayton Road, Marulan, into 16 residential lots and 1 residual lot, and the construction of associated infrastructure, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (456457, pdf)

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Decision last updated: 27 August 2020