Nicholas v Blacktown City Council

[2020] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nicholas v Blacktown City Council [2020] NSWLEC 1271

Hearing dates:

Conciliation conference on 26 May 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

See orders at [14] below

Catchwords:

DEVELOPMENT APPLICATION – subdivision into five Torrens title lots – conciliation conference – agreement between the parties – orders

Legislation Cited:

Blacktown Local Environmental Plan 2015

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Blacktown Development Control Plan 2015

Category:

Principal judgment

Parties:

Najib Nicholas (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
P Saab (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s):

2019/302592

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 19-00280 by the Blacktown City Council (hereafter the Council) which seeks a five (5) Torrens title lot subdivision with associated essential services and drainage works on Lot 4 DP 1049979 and Lot 5 DP 1004516, also known as 9-11 Carter Street, Seven Hills (hereafter the site).

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to the parties’ request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held before me on 26 May 2020 in Court, and adjourned until 18 June 2020, at the request of the parties to file the agreement. There were no (resident) objectors at the conciliation.

4. Based on the amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved, and that there were no submissions by objectors from previous notification/s of the DA. The decision of the parties is to uphold the appeal and grant consent to DA 19-00280 with conditions.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 19-00280, with conditions described in Annexure A.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court’s consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55); and the Blacktown Local Environmental Plan 2015 (BLEP).

7. The proposed subdivision complies with the provisions of SEPP 55, as no contamination was identified on the site in the Stage 1 contamination study. In addition, as the site is located within close proximity to the rail corridor, the requirements of SEPP Infrastructure are relevant for consideration. The parties confirm that the conditions provided by Sydney Water in response to the proposed development have been included in full in the conditions of consent. Therefore, the requirements of SEPP Infrastructure are satisfied, specifically cl 85.

8. The proposed development is located within the R2 Low Density Residential Zone, as identified in the BLEP. The proposed subdivision is permissible in the zone and satisfies the objectives of the zone. The parties agree that the relevant provisions of the BLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The relevant contentions are resolved.

9. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed subdivision.

10. The parties agree that the DA was publicly notified, and renotified with the amended plans, in accordance with the Blacktown Development Control Plan 2015. During the notification period/s for this DA under appeal, no submissions in objection were received by Council.

11. The amended plans that relate to the proposed subdivision have been considered in the context of the site. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties.

12. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 19-00280 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

13. 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.

14. The Court orders that:

1. The applicant is granted leave to amend Development Application No. DA-19-00280 and to rely upon the following amended plans and documents:

Plan Reference	Drawing No.	Prepared by:	Revision and Date
Subdivision Plan, Surveyors Ref: 7763	-	SDG Land Development Solutions	Not dated
Subdivision Plan Overlay Surveyors Ref: 7763	-	SDG Land Development Solutions	Not dated
Title Page, Notes and Details Drawing	SW001	Mance Arraj	Revision B, 21.01.2020
Stormwater Layout Drawing Ground Level	SW010	Mance Arraj	Revision I, 29.05.2020
Stormwater Layout Drawing Ground Level Cont’D	SW011	Mance Arraj	Revision H, 29.05.2020
Cut and Fill Drawing	SW012	Mance Arraj	Revision A, 29.05.2020
OSD Catchment Plan, OSD Basin 1 Section Detail	SW020	Mance Arraj	Revision E, 29.05.2020
Plan of OSD Tank 2, 3 & 4 and Section Details	SW021	Mance Arraj	Revision C, 29.05.2020
Interallotment Drainage Longsections	SW030	Mance Arraj	Revision D, 29.05.2020
Upstream Catchments Plan, Overland Flow Details and Calculations	SW040	Mance Arraj	Revision C, 29.05.2020
Plan of Proposed Retaining Wall Along Common Boundary of 7 Carter Street, Seven Hills	SW050	Mance Arraj	Revision B, 29.05.2020

Documents

Statement of Environmental Effects prepared by SDG Land Development Solutions (Ref 7763) Revision C dated July 2019.

2. The Applicant to pay the Respondent’s costs thrown away on an as agreed or assessed basis in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The appeal is upheld.

4. Development Application No. DA 19-00280 (as amended) for the demolition of existing dwellings and structures, the subdivision of 2 lots to create 5 Torrens Title residential lots with associated essential services and drainage system at Lot 4 in Deposited Plan 1049979 and Lot 5 in Deposited Plan 1004516 otherwise known as 9-11 Carter Street Seven Hills is approved subject to conditions included at Annexure “A”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (397167, pdf)

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Decision last updated: 26 June 2020