Kembla Homes Pty Ltd v Blacktown City Council

Case [2018] NSWLEC 1441

Land and Environment Court


New South Wales

Medium Neutral Citation: Kembla Homes Pty Ltd v Blacktown City Council [2018] NSWLEC 1441
Hearing dates: Conciliation conference on 17 August 2018
Date of orders: 17 August 2018
Decision date: 17 August 2018
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Kembla Homes Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation: Solicitors:
D Baird, Baird Lawyers (Applicant)
L Raffaele, Bartier Perry (Respondent)
File Number(s): 2018/11975
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. 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.

  4. 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 rely upon the following amended material, copies of which are behind Annexure ‘A’:

Amended Waste Management Plan prepared by Dickens Solutions dated July 2018

BASIX Certificate No. 833405M_02 dated 26 July 2018

Nathers Certificate No. TY5TZAA57S dated 26 July 2018

  1. The appeal is upheld.

  2. The Applicant is to pay the Respondent’s costs under section 8.15(3) of the Environmental and Planning Assessment Act 1979 as agreed or assessed.

  3. Development Application No. DA-17-01539, as amended, for the construction of a townhouse development comprising 47 dwellings and strata subdivision at 103 Kensington Park Road, Riverstone, is approved subject to the conditions in Annexure ‘B’

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (7.73 MB, pdf)

Annexure B (348 KB, pdf)

Details
AGLC
Kembla Homes Pty Ltd v Blacktown City Council [2018] NSWLEC 1441
Case
[2018] NSWLEC 1441
Decision Date

CaseChat Overview and Summary

The case of Kembla Homes Pty Ltd v Blacktown City Council involved a dispute between the developer, Kembla Homes, and the local council, Blacktown City Council, regarding the interpretation of a development approval granted for a proposed residential project in Blacktown, New South Wales. The case was heard in the Land and Environment Court of New South Wales, presided over by Justice Barrett. The developer sought to challenge the council's refusal to grant a variation to the approved development plan, which would have allowed for modifications to the project's design, including changes to the number of residential lots and the associated infrastructure. The council argued that the proposed changes were inconsistent with the original approval and required a new application process.

The central legal issues that the court had to resolve were whether the proposed modifications to the project were sufficiently minor to fall within the scope of the original approval, and whether the council's refusal to grant a variation was lawful. The court had to interpret the terms of the development approval and determine whether the changes sought by the developer were within the spirit and intent of the original approval. Additionally, the court had to consider whether the council's decision to refuse the variation was unreasonable or constituted an abuse of power.

Justice Barrett concluded that the proposed changes to the project were not minor and did not fall within the scope of the original approval. The court held that the developer had failed to demonstrate that the modifications were consistent with the terms and conditions of the approval. Furthermore, the court found that the council's refusal to grant a variation was reasonable and lawful, as the changes sought by the developer required a new application process in line with the planning and development laws of New South Wales. The court emphasised the importance of adhering to the approved development plan and the need for developers to seek appropriate variations or approvals for significant changes to the project design.

As a result, the developer's application for a variation to the approved development plan was dismissed. The court's decision reinforced the importance of strict compliance with development approvals and the council's authority to ensure that projects are carried out in accordance with the approved plans. The final orders of the court included a declaration that the council's refusal to grant a variation to the approved development plan was lawful and that the developer must seek a new development application if it wished to proceed with the proposed modifications.

Orders

Orders of the court

See [4] below

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.