Cornish Group Spring Farm Pty Ltd v Camden Council

[2020] NSWLEC 1428

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cornish Group Spring Farm Pty Ltd v Camden Council [2020] NSWLEC 1428

Hearing dates:

Conciliation conference on 4 September 2020

Date of orders:

15 September 2020

Decision date:

15 September 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

See orders at [11] below.

Catchwords:

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

Legislation Cited:

Camden Local Environmental Plan 2010

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Camden Development Control Plan 2019

Category:

Principal judgment

Parties:

Cornish Group Spring Farm Pty Ltd (First Applicant)
Cornish Group No. Four Pty Ltd (Second Applicant)
Camden Council (Respondent)

Representation:

Counsel:
J Corradini-Bird (Solicitor) (Applicants)
A Johnson (Solicitor) (Respondent)

Solicitors:
Marsdens Law Group (Applicants)
Swaab Attorneys (Respondent)

File Number(s):

2020/84674

Publication restriction:

No

Judgment

1. COMMISSIONER: Cornish Group Spring Farm Pty Ltd and Cornish Group No. Four Pty Ltd (the Applicants) have appealed the grant of development consent (No. 2019/970/1) by Camden Council (the Respondent) for their development application DA/2019/971/1 for the subdivision of land (the Proposed Development) within Lot 6213 in DP 1228465 at Spring Farm (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. 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 4 September 2020, and I presided over that conciliation conference.

5. 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 Applicants’ development application, subject to conditions.

6. 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.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have, in their opinion, been addressed satisfactorily as follows:

1. the development application was made with the consent in writing of Cornish Group Spring Farm Pty Ltd and Cornish Group No. Four Pty Ltd (the Applicants), the owners of the land known as 1 Pipping Way, Spring Farm and legally described as Lot 6213 in DP 1228465, in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation);

2. the Subject Site may be subdivided with development consent in accordance with cl 2.6 of Camden Local Environmental Plan 2010 (CLEP);

3. the two lots that would result from the Proposed Development (proposed lot 6305 which has an area of 845.4m² and proposed lot 6306 which has an area of 2,449m²) both comply with the minimum lot size requirements in cl 4.1(2) of CLEP;

4. Part 6 of CLEP contains clauses applying to development within an Urban Release Areas, and the Subject Site is located within an Urban Release Area. The clauses within Part 6 of CLEP that are of relevance in this appeal are:

1. clause 6.1(2)(a) which states that development consent must not be granted for the subdivision of land in an Urban Release Area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before the land became, or became part of, an urban release area, unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot. In relation to this a Satisfactory Arrangements Certificate has been provided by the Department of Planning, Industry and Environment, dated 28 April 2020.

2. clause 6.2 which states that development consent must not be granted for development on land in an Urban Release Area unless the Council is satisfied that adequate arrangements have been made to make that infrastructure available when it is required. In relation to this, the Respondent has advised that it is satisfied that adequate arrangements have been made to make infrastructure available as required, and has confirmed that these adequate arrangements are confirmed within conditions that are proposed to be imposed as part of the grant of consent.

3. clause 6.3 which states that development consent must not be granted for development on land in an Urban Release Area unless a development control plan provides for the matters specified in subcl 6.3(3) has been prepared for the land. In relation to this, Schedule 2 of the Camden Development Control Plan 2019 has been prepared in relation to Spring Farm and that plan addresses the matters identified in cl 6.3(3) of CLEP.

5. the proposed development does not contravene any other development standard in CLEP nor any other applicable environmental planning instrument;

6. consideration has been given as to whether the Subject Site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The Subject Site has been the subject of detailed site investigations, site remediation works and site validation. Accordingly, the Court can be satisfied that the site is suitable for its proposed use in its existing state.

8. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

9. 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.

10. 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.

11. The Court orders that:

1. The Applicant is granted leave to rely on the following plans:

Drawing No.	Drawing Name	Prepared by	Revision	Date
Stormwater Plans
C01	Cover sheet – Site Locality and Schedule of Drawings	Premise	3	20/07/20
C02	Stormwater Drainage Layout Plan	Premise	3	20/07/20
C03	Stormwater Drainage Longitudinal Section	Premise	3	20/07/20
C04	Stormwater Drainage Calculation Sheet	Premise	3	20/07/20
C05	Soil and Water Management Plan	Premise	3	20/07/20
C06	Soil and Water Management Details and Notes	Premise	3	20/07/20
C07	Landscape Plan	Premise	3	20/07/20

2. The appeal is upheld.

3. Development Application No. 2019/970/1 for the subdivision of Lot 6213 in DP 1228465 into two allotments, being Torrens title Lot 6305 (with an area of 845.4m²) and residue Lot 6306 (with an area of 2,449m²) is approved subject to the conditions of consent annexed hereto and marked “A”.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (203564, pdf)

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Decision last updated: 15 September 2020