Fitzgerald v Blacktown City Council

[2022] NSWLEC 1340

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fitzgerald v Blacktown City Council [2022] NSWLEC 1340

Hearing dates:

Conciliation conference on 2 May 2022 and 1 June 2022

Date of orders:

30 June 2022

Decision date:

30 June 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development Application DA-21-02297 to introduce a light industry component (thermal processing and pasteurisation of used cooking oil) into an existing warehouse development on land legally described as Lot 35 in DP814866 and known as 2 Healey Circuit, Huntingwood is determined by the grant of consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – introduction of use to existing warehouse - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 3.6, 4.6, Pt 3

Category:

Principal judgment

Parties:

Peter Fitzgerald (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Houston Dearn O’Connor Lawyers (Respondent)

File Number(s):

2022/54799

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. DA-21-02297 seeking development consent to introduce a light industry component into the existing warehouse operations permitting the thermal processing and pasteurisation of used cooking oil ancillary to the existing use of the warehouse for the storage and distribution of new and used cooking oil (the Proposed Development) at 2 Healey Circuit, Huntingwood legally describes as Lot 35 in Deposited Plan 814866 (the Site).

2. 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 2 May 2022 and 1 June 2022. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. The parties filed an agreement pursuant to s 34 of the LEC Act on 24 June 2022.

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. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) in relation to contamination of land. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement.

6. The proposed activity is not a hazardous industry or an offensive industry as defined by s 3.6 and Pt 3 of the Resilience and Hazards SEPP. In regards to contamination issues and s 4.6 of the Resilience and Hazards SEPP, the development application is accompanied by a preliminary site investigation report prepared by Benbow Consulting dated June 2022 and filed with the Court on 24 June 2022. The report concludes as follows:

“Evidence of potential contamination is limited to possible historical munitions abandoned when the site was part of a munitions storage area in World War 2. The likelihood of explosive materials within the site and the risk from this is considered as being extremely low. No further testing or investigations are required.

The site is considered suitable for ongoing industrial use.”

7. The Court is satisfied that it has evidence before it which allows me to be satisfied that the land is suitable for the Proposed Development as required by s 4.6(1) of the Resilience and Hazards SEPP.

8. 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.

9. 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.

Notations

10. The Court notes that:

1. Blacktown City Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA-21-02297 with the following material (the Amended Development Application):

1. Architectural Plan prepared by Intercapital Consultants, Revision H and Drawing No. C0365-S1;

2. Statement of Environmental Effects prepared by Benbow Environmental, revision 4 dated 17 May 2022;

3. Preliminary site investigation prepared by Benbow Environmental and dated 20 June 2022.

2. That the Amended Development Application was uploaded to the NSW Planning Portal on 24 June 2022;

3. That the amended development application was filed with the Court on 24 June 2022;

Orders

11. The Court orders that:

1. The Appeal is upheld.

2. Development Application DA-21-02297 to introduce a light industry component (thermal processing and pasteurisation of used cooking oil) into an existing warehouse development on land legally described as Lot 35 in DP814866 and known as 2 Healey Circuit, Huntingwood is determined by the grant of consent subject to the conditions set out in Annexure “A”.

……………………….

E Espinosa

Commissioner of the Court

(Annexure A) (172265, pdf)

(Site Plan) (780276, pdf)

(Tank Farm Layout) (367544, pdf)

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