Isaac Property Developments Pty Ltd v Camden Council

[2019] NSWLEC 1128

Land and Environment Court

New South Wales

Medium Neutral Citation:	Isaac Property Developments Pty Ltd v Camden Council [2019] NSWLEC 1128
Hearing dates:	Conciliation conference on 22 March 2019
Date of orders:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See [9] below
Catchwords:	DEVELOPMENT APPLICATION: against deemed refusal - conciliation conference - agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 National Parks and Wildlife Act 1974 Roads Act 1993 No 33 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 33—Hazardous and Offensive Development
Category:	Principal judgment
Parties:	Isaac Property Developments Pty Ltd (Applicant) Camden Council (Respondent)
Representation:	Solicitors: R Hiscock, Allens (Applicant) L Raffaele, Bartier Perry (Respondent)
File Number(s):	2018/111113
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application (DA) DA/2017/1349/1 for the demolition of existing structures, tree removal, construction of a service station and food and drink premises with drive through facility to operate 24 hours a day, 7 days a week, construction of a new temporary vehicle access point for the site to and from Bringelly Road including a deceleration lane and associated works.

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 was held on 22 March 2019. 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 conditional development consent to the development application subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. A signed agreement, prepared in accordance with s 34 (10) of the LEC Act, was filed with the Court on 22 March 2019.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent in Annexure ‘A’.

5. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the prerequisites have been satisfied in order to allow the Court to make the agreed orders.

6. 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

7. 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 for the following reasons:

1. The DA was made with the consent in writing of the owners of the land (Lot 7 in DP 1204031, Lot 8 in DP 1204031, Lot 27 in DP 1204031 and Lot 28 in DP 1204031, otherwise known as 221 Bringelly Road, Leppington) to which it relates.

2. The proposed development is for the purpose of a service station and a food and drink premises, which is permissible with development consent in the B7 Business Park zone under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP).

3. The proposed development does not contravene any development standard in the Growth Centres SEPP or any other applicable environmental planning instrument.

4. The DA is traffic-generating development, pursuant to column 1 of Sch 3 to the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). Clause 104 of the Infrastructure SEPP requires that notice of the application and an opportunity to make a submission be provided to Roads and Maritime Services (RMS). Any response received from RMS must be considered by the consent authority.

5. The DA also requires concurrence from RMS under cl 138(2) of the Roads Act 1993 as the Application involves a deceleration lane and works within the road reserve of Bringelly Road, being a classified road. RMS has provided its consent, and general terms of approval have been incorporated into Condition 1.0(1) of Annexure ‘A’.

6. Clause 45 of the Infrastructure SEPP requires concurrence from the relevant electricity supply authority where works include the penetration of the ground. Endeavour Energy has granted concurrence, and general terms of approval have been incorporated into Condition 1.0(1) of Annexure ‘A’.

7. State Environmental Planning Policy No 33—Hazardous and Offensive Development (SEPP 33) applies to the uses proposed in the DA. I am satisfied that current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development have been used to prepare a SEPP 33 Risk Screening Document by Hazkem Pty Ltd, dated September 2017 and which concludes that the site is deemed “not potentially hazardous”.

8. Aboriginal artefacts are located in the proximity of the proposed development and so pursuant to s 90 of the National Parks and Wildlife Act 1974, an aboriginal heritage impact permit is required, and which was issued by the Office of Environment and Heritage (OEH). The general terms of approval/requirements have been incorporated in to Condition 1.0(1) of Annexure ‘A’.

8. 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.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend development application DA/2017/1349/1 by relying on the plans and documents referred to in Condition 1 of the conditions in Annexure A.

2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment referred to in [9(1)] as assessed or agreed pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development Application DA/2017/1349/1 for the demolition of existing structures, tree removal, construction of a service station and food and drink premises with drive through facility to operate 24 hours a day, 7 days a week, construction of a new temporary vehicle access point for the site to and from Bringelly Road including a deceleration lane and associated works is approved, subject to conditions in Annexure A.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (392 KB, pdf)

Plans (2.80 MB, pdf)

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Decision last updated: 29 March 2019