Karampour v Fairfield City Council

[2021] NSWLEC 1769

Land and Environment Court

New South Wales

Medium Neutral Citation:

Karampour v Fairfield City Council [2021] NSWLEC 1769

Hearing dates:

Conciliation conference on 10 December 2021

Date of orders:

17 December 2021

Decision date:

17 December 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See orders at [15] and [16] below

Catchwords:

MODIFICATION APPLICATION – deletion of condition of consent – LOCAL GOVERNMENT ACT 1993 ORDER - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55, 8.9, 8.10,

Environmental Planning and Assessment Regulation 2000, cll 49, 121B

Fairfield Local Environment Plan 2013

Land and Environment Court Act 1979, ss 17, 18, 34,39

Local Government Act 1993, ss 124, 153, 180

Cases Cited:

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

Texts Cited:

Fairfield City wide Development Control Plan 2013

Category:

Principal judgment

Parties:

Janet Karampour (First Applicant)
Hormoz Karampour (Second Applicant)
Fairfield City Council (Respondent)

File Number(s):

2021/25235 and 2021/280606

Judgment

1. COMMISSIONER: These 2 appeals related to 1667 The Horsley Drive, Horsley Park NSW being Lot 79A in Deposited Plan 17288 (the Site) as follows:

1. Proceedings 2021/25235 are an appeal against the deemed refusal of Fairfield City Council (Council) pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to Modification Application No. 688.2/2011 (Modification appeal) lodged with Council on 24 March 2020 to modify Development Consent No. 437/2015 (the Consent) for a Reception Centre on the site.

2. The Modification appeal falls within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. Proceedings No. 2021/280606 are an appeal against the Council imposing Order No. 11 pursuant to s 124 of the Local Government Act 1993 (LG Act) (Order’s appeal) in relation to the Site.

4. The Order’s appeal falls within Class 2 of the Court’s jurisdiction pursuant to s 18(a) of the LEC Act.

5. In relation to the Modification appeal, the Court exercises the powers or functions contained in ss 34(3) and 39(2) of the LEC Act, and s 4.55(2) of the EPA Act.

6. In relation to the Order’s appeal, the Court exercises the powers or functions contained in ss 34(3) and 39(2) of the LEC Act, and ss 153 and 180 of the LG Act.

Background

2. The site is situated within Zone RU2 Rural Landscape pursuant to the provisions of Fairfield Local Environment Plan 2013 (FLEP 2013). Development for the purpose of a function centre is permissible with consent.

3. Relevantly, environmental protections works are permissible without consent. ‘Environmental protection works’ are defined in FLEP 2013, pp 84-85 as:

environmental protection works means works associated with the    rehabilitation of land towards its natural state or any work to protect    land from environmental degradation, and includes bush regeneration    works, wetland protection works, erosion protection works, dune    restoration works and the like but does not include coastal protection    works.

4. On 25 July 2011, the Applicants lodged DA 437.1/2015 with Council seeking consent for the construction of a function centre on the Site. The consent was subsequently granted on 7 September 2015 (the Consent).

5. However, on 11 August 2015 the Council issued orders pursuant to s 124 of the LG Act to the owner of the Site, and also to the owners of the adjoining/nearby sites known as 1667, 1681 and 1681A The Horsley Drive, Horsley Park (2015 Orders).

6. On 24 March 2020, the Applicant lodged with Council an application to modify the Consent by deleting conditions 2 and 3, being Modification Application 688.1/2020 (Modification).

7. On 28 January 2021, the Applicant commenced the Modification appeal against the deemed refusal of the modification application, pursuant to s 8.9 of the EPA Act, and in compliance with the time provisions in s 8.10 of the EPA Act.

8. On 5 July 2021, the Council revoked the 2015 Orders in relation to the Site.

9. On 6 September 2021, the Council issued a new order to the Applicant pursuant to s 124 (Item 11 to the Table thereof) of the LG Act (2021 Order), as follows:

Local Government Act 1993: Table

Orders

Orders requiring or prohibiting the doing of things to or on premises

Column 1	Column 2	Column 3
To do what?	In what circumstance?	To whom?
11	To do or to refrain from doing such things as are specified in the order to prevent environmental damage, to repair environmental damage or to prevent further environmental damage	Work carried out on land has caused or is likely to cause environmental damage, being damage to the physical environment that is caused by— (a)  drainage, or (b)  drainage works, or (c)  obstructing a natural watercourse other than by a work constructed or used under a water management work approval granted under the Water Management Act 2000, not being environmental damage arising from premises, works or equipment the subject of a licence issued under the Protection of the Environment Operations Act 1997 or the subject of a notice or direction issued by a regulatory authority under that Act	Any person apparently engaged in promoting, conducting or carrying out the activity

10. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 10 December 2021. I presided over the conciliation conference.

11. At the conciliation conference, the parties reached agreement as to the terms of a decision in both proceedings that would be acceptable to the parties. This decision involved upholding the Modification appeal, granting development consent to the Modification of the Consent subject to conditions, and revoking the 2021 Order.

12. 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 involved the Court exercising the functions as set out below, and the parties also identified the jurisdictional prerequisites of relevance in these proceedings:

1. Modification appeal

1. The Applicants are the owners of the Site, and therefore had the right to lodge the Modification application pursuant to cl 49(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and subsequently file the Modification appeal pursuant to ss 8.9 and 8.10 of the EPA Act.

2. The Site is zoned RU2 Rural Landscape pursuant to the provisions of the FLEP 2013, and development for the purposes of a function centre is permissible with consent.

3. The power to modify a development consent is pursuant to s 4.55(2) of the EPA Act, and is contingent upon the matters set out in subss 4.55 (2), (a), (b), (c) and (d) being satisfied.

4. Section 4.55 (2) (a) requires that should the modification be granted, the original development is to be substantially the same development:

1. The development to which the Consent relates is for a function centre. Whilst conditions 2 and 3 required works to be carried out on the watercourse on the Site, those works did not change the development from being for the purpose of a function centre. The Consent also contained condition 65 which provided as follows:

“The stormwater drainage generated from the development shall be directed to the reinstated watercourse within the site.

The complete roof guttering system must be operational as soon as the roof is clad. Surface stormwater shall not be directed or cause nuisance to adjoining properties.”

2. The Modification proposes inserting conditions 2A, 2B, 3 and 3B requiring works to be carried out on the watercourse on the Site. These amended conditions relate to the same planning matter on which the previous conditions 2 and 3 are based, that is – environmental works.

3. The parties, and the Court, agree that the development to which the Consent as modified (by insertion of conditions 2A, 2B, 3 and 3B) relates, is substantially the same development as the development for which consent was originally granted (with its then-conditions 2 and 3).

5. Section 4.55(2)(b) Consultation:

1. When the Consent was originally granted, no condition had been imposed as a requirement of a concurrence to the Consent or in accordance with the general terms of an approval proposed to be granted.

2. Accordingly, s 4.55(2)(b) of the EPA Act requiring an application for concurrence is not applicable in the present case.

6. Section 4.55(2)(c) Notification:

1. At the relevant time, Council’s Fairfield City wide Development Control Plan 2013 (FDCP 2013) included Appendix B.

2. Appendix B noted that modifications under s 96(2) (now s 4.55(1A)(c) of the EPA Act will be notified/advertised in the same manner as the original application.

3. The Modification application was notified by Council pursuant to letters dated 29 May 2020.

4. The parties agree that the Modification application has been notified in accordance with the FDCP 2013 – Appendix B.

7. Section 4.55(2)(d) Submissions:

1. Council did not receive any submissions as a result of the notification of the Modification application.

2. The parties agree that s 4.55(2)(d) is not relevant in the present case.

8. The Modification application was made with the consent in writing of the owners of the Site.

9. The Court has power to determine the matter in accordance with ss 34(3), 39(2) of the LEC Act, and s 4.55(2) of the EPA Act.

2. Order’s appeal

1. The Court has the functions and discretions set out in ss 34(3) and 39(2) of the LEC Act, as well as ss 153 and 180 of the LG Act.

2. The Applicants filed their appeal in this Court within the time provisions of s 180(3) of the LG Act.

3. Section 153 of the LG Act provides that an order given by a Council may be revoked at any time.

4. Section 180(1) provides that the Court has power to revoke an order, and the Court also exercises its functions pursuant to s 34(3) and 39(2) of the LEC Act.

5. Further, in relation to the Order’s appeal, s 180(4) of the LG Act provides that environmental protection works (as defined in the dictionary of the FLEP 2013) are permissible without consent. However, in this matter it is a requirement by Council that the Applicants carry out the proposed works, which the Applicants have now agreed to do by including those works as conditions of consent in the Modification.

13. 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.

14. 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:

1. The Applicants, as the owners of the land made the Modification application to Council, and appealed the deemed refusal of consent in accordance with ss 8.9 and 8.10 of the EPA Act.

2. The decision to modify the Consent requires the deletion of 2 conditions and the imposition of conditions 2A, 2B, 3 and 3B. The modified conditions relate to environmental works on the land, as did the former conditions, and reflect the works required by Council to be carried out by the 2021 Order.

3. The decision of McClellan CJ (as he then was) in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 applies, relevantly at pars [52]-[53], where his Honour held that a Council is empowered to grant a modification application, in whole or in part, and if it so decides, apply conditions relating to the same planning matter as the subject of the modification application.

4. The Modification application complies with s 4.55(2)(a)-(d) of the EPA Act.

5. There is no requirement for the Council to comply with cl 121B of the EPA Regulation because there has not been a modification requiring the lodgement of an amendment on the NSW planning portal. The parties agree to the original Modification appeal being upheld, with the imposition of conditions relevant to the modification of the Consent.

6. The Consent is for the purpose of a function centre. The Modification application relates to environmental works on the Site. The parties have agreed that the conditions to be imposed (2A,2B, 3 and 3) reflect the environmental works which were being required to be carried out by the 2021 Order.

7. In accordance with ss 34(3) and 39(2) of the LEC Act, and s 4.55(2)(a)-(d) of the EPA Act, the Modification appeal should be upheld.

8. As the conditions to the Modification appeal reflect the environmental works required to be carried out under the 2021 Order, it is appropriate that the 2021 Order be revoked in accordance with ss 34(3) and 39(2) of the LEC Act, and s 180(4)(a) of the LG Act.

15. In relation to proceedings No. 2021/25235 the Court orders:

1. The appeal is upheld.

2. Development Consent No. 688.1/2021, originally granted to by the Respondent on 7 September 2015, for the construction of a reception centre to cater for a maximum of 600 patrons with associated car parking, landscaping and installation of an on-site waste water treatment facility on the land at 1667 The Horsley Drive, Horsley Park (Lot 79A in Deposited Plan 17288) is modified pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, as set out in Annexure A.

3. As a consequence of Order (2), Development Consent No. 688.1/2021 is subject to the consolidated modified conditions set out in Annexure B.

16. In relation to proceedings No.2021/280606:

1. The Court notes that Orders 1, 2 and 3 in the Order No. 11 issued by the Respondent pursuant to s 124 of the Local Government Act 1993 to the Applicants and dated 9 September 2021, are now included in Condition 3 of Development Consent No. 688.1/2021, originally granted by the Respondent on 7 September 2015, for the construction of a reception centre to cater for a maximum of 600 patrons with associated car parking, landscaping and installation of an on-site waste water treatment facility on the land at 1667 The Horsley Drive, Horsley Park being Lot 79A in Deposited Plan 17288 and modified by the Court in Land and Environment Court of NSW proceedings No. 2021/00025235.

2. The Court Orders that Order No. 11 pursuant to s 124 of the Local Government Act 1993 issued by the Respondent to the Applicants and dated 9 September 2021 is revoked.

…………………………

M Peatman

Acting Commissioner of the Court

(Annexure A) (226507, pdf)

(Annexure B) (344827, pdf)

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Decision last updated: 17 December 2021