Guntawong Developments No1 Pty Ltd ATF Guntawong Dev No1 Trust v Blacktown City Council

[2023] NSWLEC 1362

Land and Environment Court

New South Wales

Medium Neutral Citation:

Guntawong Developments No1 Pty Ltd ATF Guntawong Dev No1 Trust v Blacktown City Council [2023] NSWLEC 1362

Hearing dates:

Conciliation conference on 16 June 2023

Date of orders:

13 July 2023

Decision date:

13 July 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Modification Application (MOD-22-00114), which seeks consent to modify DA-17-02747 to introduce staging, amend stormwater drainage strategy, address deferred commencement matters 0.3 and 0.4, reduce the width of the proposed temporary road, allocate lot number to temporary road, minor change to the description of the development, introduce conditions for a works in kind agreement, and minor change to lot numbering, is determined by approving the modifications as set out in Annexure A.

(3) As a consequence of order (2) above, Development Consent No DA-17-02747 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979,s 34

State Environmental Planning Policy (Precincts - Central River City) 2021, Appendix 11 s 2.6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Guntawong Developments No1 Pty Ltd ATF Guntawong Dev No1 Trust (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
A Scully (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/144258

Publication restriction:

No

Judgment

1. COMMISSIONER: This judgment relates to an appeal brought by the applicant under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Blacktown City Council (Council) of modification application MOD-22-00114. This modification application seeks to modify development application DA-17-02747 which was granted deferred commencement consent by Council for land subdivision and associated matters on 4 December 2019.

2. The site is known as 172 Guntawong Road Rouse Hill, and has recently been subject to a “Plan of Redefinition” which provides the legal description of Lot 1 in DP 1280782.

3. More particularly I can mention here that DA-17-02747 and therefore MOD-22-00114 involve, what is described by the parties as, a “parent” subdivision of the site. This parent subdivision would position the site, through some administrative and stormwater management commitments, for future further detailed subdivision and land servicing, prior to ultimate sale and land use change.

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 16 June 2023. Prior to the conciliation conference the parties filed a signed agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. This decision involved the Court upholding the appeal and granting consent to MOD-22-00114 subject to conditions. Here I note that on 28 April 2023, the Court granted leave to the applicant to amend MOD-22-00114 to assist in the resolution of proceedings, and that further, the Court notes that Council has agreed to the applicant further amending MOD-22-00114 to accord with the documents described in the table below.

Subdivision Plans prepared by Malcolm Smith Pty Limited		Date
(1)	Proposed Subdivision Layout - Stage 1 (Sheet 1 of 2)	30.11.2022
(2)	Proposed Subdivision Layout - Stage 2 (Sheet 2 of 2)	30.11.2022

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.55(1A) of the EPA Act to modify DA-17-02747D. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties’ sought to assist here by providing the Court an agreed “jurisdictional statement” with respect to the assessment of MOD-22-00114. Having regard to this jurisdictional statement provided by the parties, I find as follows with respect to jurisdiction.

Jurisdiction

Section 4.55(1A) of the EPA Act

8. Having direct regard to the provisions of s 4.55(1A) of the EPA Act, I can readily find that I agree with the parties’ jurisdictional statement and I am satisfied in regard to each of the following matters.

Proposed modification is of minimal environmental impact

9. The modification is essentially concerned with procedural changes which do not bring anything more than minimal environmental impact.

Development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)

10. The modification proposes amendments to adjust the stormwater strategy and design. It would not change the essential road layout or substance of the developable area. It does provide for a two stage subdivision arrangement with respect to an interim and then final stormwater management solution for the site.

MOD-22-00114 has been notified in accordance with requirements, and any submissions relevantly considered

11. The relevant community participation plan, Blacktown City Council Growth Centres Precinct Development Control Plan 2010, does not require notification of MOD-22-00114 and I note the advice in Council’s Amended Statement of Facts and Contentions filed on 6 June 2023 that the application was not notified. There are no submissions to consider in this instance.

Section 4.55(3) of the EPA Act

12. Mindful of s 4.55(3), I have also given consideration to relevant matters under s 4.15(1) of the EPA Act and note as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. The site's contamination profile was considered during the assessment of DA-17-02747, where the consent authority was satisfied that the site is suitable for the proposed residential use and that no site remediation is required.

14. Accordingly, I am satisfied that the site is suitable for the proposed residential use, in accordance with s 4.6.

State Environmental Planning Policy (Precincts - Central River City) 2021

15. The site is located within the Riverstone East Precinct and the relevant statutory controls are contained within Appendix 11 Blacktown Growth Centres Precinct Plan of the State Environmental Planning Policy (Precincts - Central River City) 2021 (SEPP Precincts CRC) (Precinct Plan). I note that s 2.6 provides that land to which the Precinct Plan applies may be subdivided with development consent. I accept the advice of the parties and am 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. I am satisfied with the detailed advice of the parties that there are no jurisdictional breaches of SEPP Precincts CRC with this modification application.

16. I further note in regard to s 4.15(1) of the EPA Act that I have considered the reasons given by the consent authority for the grant of the consent that is sought to be modified, as advised by Council.

Conclusion and Orders

17. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and 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. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

19. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

20. The Court orders:

1. The appeal is upheld.

2. The Modification Application (MOD-22-00114), which seeks consent to modify DA-17-02747 to introduce staging, amend stormwater drainage strategy, address deferred commencement matters 0.3 and 0.4, reduce the width of the proposed temporary road, allocate lot number to temporary road, minor change to the description of the development, introduce conditions for a works in kind agreement, and minor change to lot numbering, is determined by approving the modifications as set out in Annexure A.

3. As a consequence of order (2) above, Development Consent No DA-17-02747 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

P Walsh

Commissioner of the Court

(Annexure A) (222497, pdf)

(Annexure B) (408822, pdf)

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Decision last updated: 13 July 2023