Easemore Pty Ltd v Newcastle City Council

[2019] NSWLEC 1345

Land and Environment Court

New South Wales

Medium Neutral Citation:	Easemore Pty Ltd v Newcastle City Council [2019] NSWLEC 1345
Hearing dates:	Conciliation conference on 24 June 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development application DA/2017/01076 seeking consent for demolition of buildings, erection and use of service station with associated convenience store, erection and use of restaurant, installation of signage and tree removal on land described as 86-90 Maitland Road Mayfield NSW 2304 is determined by granting development consent subject to the conditions set out in Annexure ‘A’. (3)   No order as to costs.
Catchwords:	DEVELOPMENT APPLICATION – New service station and restaurant – amended design – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Newcastle Local Environmental Plan 2012 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 33—Hazardous and Offensive Development
Category:	Principal judgment
Parties:	Easemore Pty Ltd (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: S Duggan SC (Applicant) A Pearman (Respondent)   Solicitors: Johnson Winter Slattery (Applicant) Newcastle City Council (Respondent)
File Number(s):	2018/364842
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant against the deemed refusal of its development application DA-2017/01076. The application seeks approval for demolition of buildings, construction and use of a service station, convenience store and restaurant, associated signage and site works. The development is proposed at 86-90 Maitland Road, Mayfield (Lots 260, 270, 271, 272, 273, 274 and 275 in DP 742898).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 24 June 2019. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

4. 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 have formed this state of satisfaction for the following reasons:

1. The proposed development falls within the definition of a potentially hazardous industry under State Environmental Planning Policy No 33 — Hazardous and Offensive Development (SEPP 33). Consistent with cl 12 of SEPP 33, a preliminary hazard analysis has been prepared ‘Multi Level Risk Assessment: United Service Station, 86-90 Maitland Road, Mayfield 16 May 2018, inTOTUM Pty Ltd. In determining this application, I have given consideration to that analysis and the matters listed at cl 13 of SEPP 33.

2. I am satisfied that the application has been notified as in a manner consistent with the requirements of cl 14 of SEPP 33.

3. Further, I am satisfied that the application has been notified in accordance with the relevant development control plan and the submissions have been considered.

4. Pursuant to cl 104 of State Environmental Planning Policy (Infrastructure) 2007, the application was referred to NSW Roads and Maritime Services (RMS) as integrated development. By letter of 22 October 2018, the RMS confirms it raises no objection to the proposed development.

5. Pursuant to Newcastle Local Environmental Plan 2012, the subject site is zoned B4 Mixed Use. Service Station and Food and Drink Premises are unlisted uses under the zoning table that are permissible with consent in the zone.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 4.15 of the EPA Act.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The appeal is upheld.

2. Development application DA/2017/01076 seeking consent for demolition of buildings, erection and use of service station with associated convenience store, erection and use of restaurant, installation of signage and tree removal on land described as 86-90 Maitland Road Mayfield NSW 2304 is determined by granting development consent subject to the conditions set out in Annexure ‘A’.

3. No order as to costs.

……………………………

D M Dickson

Commissioner of the Court

Annexure A (103 KB, pdf)

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Decision last updated: 24 July 2019