Googong Township Pty Limited as the Trustee for Googong Township Unit Trust v Queanbeyan-Palerang Regional Council

[2019] NSWLEC 1532

Land and Environment Court

New South Wales

Medium Neutral Citation:	Googong Township Pty Limited as the Trustee for Googong Township Unit Trust v Queanbeyan-Palerang Regional Council [2019] NSWLEC 1532
Hearing dates:	Conciliation conference on 4 September 2019
Date of orders:	05 November 2019
Decision date:	05 November 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend its development application in accordance with the plans referred to in Schedule 1 of the conditions of consent in Annexure “A”. (2)   The Appeal is upheld. (3)   Development Application No. DA 290-2018 for the Torrens title subdivision to create 67 residential lots within NH1A Stage 4D and 2 large residential lots in NH1B Stage 9, all subdivision works and landscaping and the creation of 1 residual lot (Lot 425) and 1 public reserve (Lot 901) is approved subject to the conditions set out 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 Queanbeyan Local Environmental Plan 2012 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Googong Township Pty Limited as the Trustee for Googong Township Unit Trust (Applicant) Queanbeyan-Palerang Regional Council (Respondent)
Representation:	Counsel: A Scully (Solicitor) (Applicant) A Menyhart (Solicitor) (Respondent)   Solicitors: HWL Ebsworth (Applicant) Bradley Allen Love Lawyers (Respondent)
File Number(s):	2018/390510
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Queanbeyan-Palerang Regional Council’s deemed refusal of Development Application No. DA-290-2018 (‘DA’).

2. The DA originally sought consent for a Torrens title subdivision to create 101 residential lots, two public reserve lots, one residue lot and all associated subdivision works over land. The subject land is described as Lot 844 DP 1204019, Lot 664 DP 1195842, Part Lot 4 DP 1217396 and Lot 965 DP 1207816, at Googong and Maxwell Streets Googong NSW (‘site’).

3. After the conciliation conference and agreed amendments to the proposal, 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.

4. Under s 34(3) of the Land and Environment Court Act 1979 (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 DA.

5. The parties advised that there were no jurisdictional considerations that would prevent the Court determining the appeal in accordance with the agreement. In terms of jurisdiction, the parties advise that:

1. The proposal complies with development standards contained in the Queanbeyan Local Environmental Plan 2012 (LEP);

2. Clause 6.1 of the LEP has been complied with, with a satisfactory arrangements certificate having been issued by the Secretary of the Department of Planning, Industry and Environment's delegate on 4 September 2019;

3. There is satisfaction in regard to cl 6.2(1) of the LEP, in that Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

4. Clause 7.6 of the LEP has been complied with, in that the relevant Commonwealth body has advised Council that it has no objection to the DA notwithstanding that the relevant “limitation or operations surface level” will be penetrated; and

5. In regard to cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, the Council has carried out a desk top audit which confirms the subject site is suitable for the proposed use.

6. I have considered the parties advice and the provisions more generally and I am satisfied in regard to jurisdiction; and that the parties’ decision is one that the Court could have made in the proper exercise of its functions. 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. I note that I have had no direct regard to the merits of the application in coming to this position.

7. The Court orders:

1. The Applicant is granted leave to amend its development application in accordance with the plans referred to in Schedule 1 of the conditions of consent in Annexure “A”.

2. The Appeal is upheld.

3. Development Application No. DA 290-2018 for the Torrens title subdivision to create 67 residential lots within NH1A Stage 4D and 2 large residential lots in NH1B Stage 9, all subdivision works and landscaping and the creation of 1 residual lot (Lot 425) and 1 public reserve (Lot 901) is approved subject to the conditions set out in Annexure “A”.

…………………………

P Walsh

Commissioner of the Court

Annexure A (1.39 MB, pdf)

s34 Plans (3.78 MB, pdf)

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Decision last updated: 05 November 2019