Orion Consulting Engineers v Blacktown City Council

[2019] NSWLEC 1417

Land and Environment Court

New South Wales

Medium Neutral Citation:	Orion Consulting Engineers v Blacktown City Council [2019] NSWLEC 1417
Hearing dates:	Conciliation conference on 30 August 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development application No. DA-18-01790 for the demolition of existing structures, tree removal and subdivision of 1 in to 41 Torrens title lots, including the construction of roads and infrastructure, on Lot 5, Section Q in Deposited Plan 712, otherwise known as 114 Cranbourne Street, Riverstone, is approved subject to the conditions included at Annexure ‘A’.
Catchwords:	DEVELOPMENT APPEAL – land subdivision – conciliation conference – agreement between 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 No 55 – Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centre) 2006
Texts Cited:	Blacktown Growth Centres Development Control Plan 2014
Category:	Principal judgment
Parties:	Orion Consulting Engineers (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: D Baird (Solicitor) (Applicant) D Loether (Solicitor) Respondent)   Solicitors: Marsdens Law Group (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	2019/117160
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 by the Blacktown City Council (the Respondent) of Development Application No. 18-01790 which seeks consent for the demolition of existing structures, tree removal and the subdivision of 1 into 41 Torrens title lots including the construction of roads and infrastructure at No.114 Cranbourne Street, Riverstone, being the land contained in Lot 5, Section Q in Deposited Plan 712.

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 30 August 2019 at which the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. I presided over the conciliation conference.

3. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 August 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 by grant of the Certificate subject to agreed conditions annexed to the s 34 agreement.

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 contained in the provisions of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) and the State Environmental Planning Policy No 55 – Remediation of Land (Remediation SEPP). The parties explained to me during the conference as to how conformance with the jurisdictional prerequisites has been achieved, and I am satisfied for the following reasons:

1. The site is within the R2 Low Density Residential zone as set out in Appendix 4 - Alex Avenue and Riverstone Precinct Plan 2010 of the Growth Centres SEPP, in which the objectives of the zone are as follows:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

•  To support the wellbeing of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

2. I am satisfied that subdivision will result in lot sizes between 225m2-300m2 and building envelope diagrams have been prepared and are contained on Drawing MP-02 Rev 3 as required by cl 4.1AD of Appendix 4 of the Growth Centres SEPP.

3. The proposed development is consistent with the Indicative Layout Plan contained in the Blacktown Growth Centres Development Control Plan 2014.

4. Clause 7 of Remediation SEPP requires a consent authority to consider contamination and remediation in determining a development application. I have read the following 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:

1. Stage 1 Preliminary Site Investigation & Preliminary Salinity Assessment dated 23 July 2018 prepared by Alliance Geotechnical Pty Ltd, and

2. Stage 2 Detailed Site Investigation dated 24 August 2018, prepared by Alliance Geotechnical Pty Ltd.

6. 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.

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, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The Court orders that:

1. The appeal is upheld.

2. Development application No. DA-18-01790 for the demolition of existing structures, tree removal and subdivision of 1 in to 41 Torrens title lots, including the construction of roads and infrastructure, on Lot 5, Section Q in Deposited Plan 712, otherwise known as 114 Cranbourne Street, Riverstone, is approved subject to the conditions included at Annexure ‘A’.

………………………….

T Horton

Commissioner of the Court

Annexure A (532 KB)

**********

Decision last updated: 06 September 2019