Leppington Developments Pty Ltd v Camden Council

[2019] NSWLEC 1435

Land and Environment Court

New South Wales

Medium Neutral Citation:	Leppington Developments Pty Ltd v Camden Council [2019] NSWLEC 1435
Hearing dates:	Conciliation conference on 4 September 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans referred to in condition 1.0(2) of Annexure ‘A’ (2)   The appeal is upheld. (3)   Development consent is granted to Development Application No. DA-2018/947/1 seeking consent for remediation of contaminated land, demolition of existing structures, tree removal and subdivision creating 57 residential lots and one residue lot, and associated civil works, subject to the conditions of consent annexed hereto and marked ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – new land subdivision – amended design – 57 Torrens title lots- conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55–Remediation of Land State Environmental Planning Policy (Sydney Growth Centres) 2006
Category:	Principal judgment
Parties:	Leppington Developments Pty Ltd (Applicant) Camden Council (Respondent)
Representation:	Solicitors: M Parrino, Project Lawyers (Applicant) C Rose, Swabb (Respondent)
File Number(s):	2019/17266
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application DA/2018/947/1. The original development application sought approval for the remediation of contaminated land, demolition of existing structures, tree removal, residential subdivision creating 57 Torrens title lots and one residue lots. The proposed development includes site works including earthworks, drainage, road construction, two temporary on site detention basins and landscaping.

2. On 6 August 2018, the Applicant lodged a development application with Camden Council. Following notification and assessment of the application it was refused. Through the conciliation process the parties have agreed an amended design for the subdivision.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 9 September 2019.

5. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.55(1A) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The subject land is bushfire prone land and is integrated development under s 4.46 of the EPA Act. It was referred to the NSW Rural Fire Services who provided a Bushfire Safety Authority and concurrence conditions which are incorporated in the attached conditions.

2. Clause 7 of State Environmental Planning Policy No 55 –Remediation of Land requires a consent authority to consider contamination and remediation in determining a development application. I have read the reports provided by the applicant and I am satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out.

3. The development application is made with the consent in writing of the following properties to which it relates:

1. Leppington Land Pty Ltd, being the owner of Lot 23 DP 1173857;

2. Ida Domenica Favretti, being the owner of Lot 24 DP 1173857;

3. Anglican Church Property Trust Diocese of Sydney, being the owner of Lot 49A DP 8979.

4. The land to which the development relates is zoned both R2 Low Density Residential and E4 Environmental Living pursuant to the provisions of State Environmental Planning Policy (Sydney Growth Centres) 2006 (Growth Centres SEPP).

5. the development is for the purpose of a demolition and subdivision are permissible with consent in the relevant zones,

6. the development does not contravene any development standard in the Growth Centres SEPP.

7. 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.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

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

1. The Applicant is granted leave to rely on the amended plans referred to in condition 1.0(2) of Annexure ‘A’

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-2018/947/1 seeking consent for remediation of contaminated land, demolition of existing structures, tree removal and subdivision creating 57 residential lots and one residue lot, and associated civil works, subject to the conditions of consent annexed hereto and marked ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (482 KB)

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Decision last updated: 13 September 2019