Global Organisation for Divinity v Parramatta City Council (No 3)

[2011] NSWLEC 1377

Land and Environment Court

New South Wales

Medium Neutral Citation:

Global Organisation for Divinity v Parramatta City Council (No 3) [2011] NSWLEC 1377

Hearing dates:

28 November 2011

Decision date:

28 November 2011

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is upheld.

2. The application to modify the approval by the Land and Environment Court for a meditation centre and associated parking at 44 Oakes Rd Winston Hills is approved by:

2.1 The deletion of the introductory paragraph to deferred commencement condition 1 and its replacement with the following introductory paragraph:

In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, by 2 July 2012 as to the matters set out below.

2.2 New condition 1A that states:

1A Following issuing of any operative consent of the site, physical commencement must occur in accordance with the requirements of Section 95(4) of the Environmental Planning and Assessment Act by April 2016. Should physical commencement not occur by 1 April 2016, the consent shall lapse.

Reason: to provide certainty to the community as to when physical commencement occur.

Catchwords:

MODIFICATION APPLICATION: appeal against time for satisfaction of deferred commencement conditions

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Global Organisation for Divinity v Parramatta City Council [2011] NSWLEC 1027

Category:

Principal judgment

Parties:

Global Organisation for Divinity (Applicant)

Parramatta City Council (Respondent)

Representation:

Counsel
Mr G McKee, solicitor (Applicant)

Ms C Morton, solicitor (Respondent)
Solicitors
McKees Legal Solutions (Applicant)

Sparke Helmore(Respondent)

File Number(s):

10991 of 2011

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal under s 96(8) of the Environmental Planning and Assessment Act 1979 against deferred commencement condition 1 granted by the Land and Environment Court on 1 April 2011 for a meditation centre and associated parking at 44 Oakes Rd Winston Hills ( Global Organisation for Divinity v Parramatta City Council [2011] NSWLEC 1027). The essence of the appeal is the time provided in condition 1 for the satisfaction of deferred commencement conditions. There was no dispute over the requirements in condition 1 (conditions 1(a) to 1(j)) that relate to the preparation of an Aboriginal Cultural Assessment report and other archaeological matters.

1. With the agreement of the parties, the hearing was conducted as an on site hearing on 28 November 2011 and the judgment reflects the findings given on site.

1. The introductory paragraph to deferred commencement condition 1 states (with the relevant parts shown in bold):

In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, within nine months of the date of this consent as to the matters set out below.

1. The applicant proposed that deferred commencement condition 1 be modified to read (with the relevant parts shown in bold):

In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, by 2 July 2012 as to the matters set out below.

1. At the on-site hearing, the council indicated that it did not oppose the applicants modified condition. The council also proposed an additional condition which states:

1A Following issuing of any operative consent of the site, physical commencement must occur in accordance with the requirements of Section 95(4) of the Environmental Planning and Assessment Act by April 2016. Should physical commencement not occur by 1 April 2016, the consent shall lapse.

Reason: to provide certainty to the community as to when physical commencement occur.

1. The applicant did not oppose new condition 1A.

1. A number of local residents attended the on-site hearing however none wished to speak given the limited scope of the appeal.

1. I accept the agreed position of the council and the applicant that an extension of time to carry out the work required by deferred commencement condition 1 is reasonable in the circumstances. The evidence indicates that work has commenced on the Aboriginal Cultural Assessment report and associated archaeological investigations. I am satisfied that there is no valid planning reason why an extension of time should not be granted to allow the applicant to undertake the required works.

1. Consequently, the orders of the Court are:

1. The appeal is upheld.

2. The application to modify the approval by the Land and Environment Court for a meditation centre and associated parking at 44 Oakes Rd Winston Hills is approved by:

2.1 The deletion of the introductory paragraph to deferred commencement condition 1 and its replacement with the following introductory paragraph:

In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, by 2 July 2012 as to the matters set out below.

2.2 New condition 1A that states:

1A Following issuing of any operative consent of the site, physical commencement must occur in accordance with the requirements of Section 95(4) of the Environmental Planning and Assessment Act by April 2016. Should physical commencement not occur by 1 April 2016, the consent shall lapse.

Reason: to provide certainty to the community as to when physical commencement occur.

________

G T Brown

Acting Senior Commissioner