Elite International Development Pty Ltd v Blacktown City Council
[2020] NSWLEC 1022
•30 January 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Elite International Development Pty Ltd v Blacktown City Council [2020] NSWLEC 1022 Hearing dates: Conciliation conference on 19 November; 6 November 2019 and 13 December 2019 Date of orders: 30 January 2020 Decision date: 30 January 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders:
(1) Leave is granted to the Applicant to rely on the amended plans as set out in conditions 2.1.1 of Annexure “A”.
(2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
(3) The appeal is upheld.
(4) Development Application DA-18-02454 is approved, subject to the conditions in Annexure “A”.Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No.55 Remediation of Land
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Water Management Act 2000Cases Cited: Maule v Lipironi (2002) NSWLEC 25 Category: Principal judgment Parties: Elite International Development Pty Ltd (Applicant)
Blacktown City Council (Respondent)Representation: Counsel:
Solicitors:
J Smith (Applicant)
L Raffaele (Solicitor) (Respondent)
Shaw Reynolds (Applicant)
Bartier Perry Lawyers (Respondent)
File Number(s): 2019/83052 Publication restriction: No
Judgment
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COMMISSIONER: Elite International Development Pty Ltd (the Applicant) has appealed the deemed refusal by Blacktown City Council (the Respondent) of its development application (DA-18-02454 for the staged subdivision in five stages of proposed lot 329 for the purpose of creating 137 Torrens Title residential lots with building envelope plans, and three residual lots (the Proposed Development), at 14 and 28 Clarke Street, Riverstone (also known as Lot 1 and Lot 8 in DP30211), (the Subject Site). The Applicant’s Proposed Development includes demolition works, tree removal, dam dewatering, drainage works, earthworks, public road construction, street plantings and associated site works.
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The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.
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The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 19 November, 6 November 2019 and 13 December 2019, and I have presided over the conciliation conference.
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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 development application, subject to conditions.
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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.
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The Respondent’s Statement of Facts and Contentions (SoFAC) had identified that the Applicant’s development application was integrated development under s 4.47 of the EPA Act, and required approval under the Water Management Act 2000 (the WM Act).
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Notwithstanding the statement in Respondent’s SoFAC (see above at [6]), the Parties have advised that, consistent with the principle in Maule v Lipironi (2002) NSWLEC 25, they were agreed that the Applicant’s Proposed Development was not integrated development. They also advised that the Department of Primary Industries – Water (DPI Water), to which the Applicant’s Development Application was referred on 14 December 2017, had confirmed that approval under the WM Act was not required.
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The Parties have confirmed that all other jurisdictional prerequisites that must be satisfied before the functions under s 4.16 of the EPA Act can be exercised, have been satisfied, including the requirements of:
State Environmental Planning Policy (Infrastructure) 2007, and in relation to which the Respondent Council had referred the Applicant’s development Application to the NSW Roads and Maritime Services, which had confirmed that it had no objection to the Proposed Development;
State Environmental Planning Policy (Sydney Region Growth Centres) 2006, and in relation to which the Parties confirmed that the requirements of cll 4.1, 4.1B and 6.1 had been satisfied;
State Environmental Planning Policy No.55 Remediation of Land, and in relation to which the Parties confirmed that the requirements of cl 7 had been satisfied;
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As a consequence, I am 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.
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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.
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The Court orders:
Leave is granted to the Applicant to rely on the amended plans as set out in conditions 2.1.1 of Annexure “A”.
The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
The appeal is upheld.
Development Application DA-18-02454 is approved, subject to the conditions in Annexure “A”.
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M Chilcott
Commissioner of the Court
Annexure A (669 KB)
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Decision last updated: 30 January 2020
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