Platinum (Kirrawee) Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1330

Land and Environment Court

New South Wales

Medium Neutral Citation:	Platinum (Kirrawee) Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1330
Hearing dates:	Conciliation conference on 30 May 2019; 7 June 2019; 27 June 2019
Date of orders:	23 July 2019
Decision date:	23 July 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend their development application in accordance with the plans referred to in condition 2 of Annexure ‘A’. (2)   The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) in the agreed amount of $3,500 within 14 days from the date of this order. (3)   The appeal is upheld (4)   Development Application No. DA18/0298 for the demolition of existing industrial complex and construction of new light industrial/warehousing premises or distribution centre; and self-storage facility; external wall signage; tenancy signage; and strata subdivision at 459 The Boulevarde, Kirrawee is approved subject to the conditions set out in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPEAL – conciliation conference –industrial warehouse – 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 Sutherland Shire Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Platinum (Kirrawee) Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: D Baird, Baird Lawyers (Applicant) J Amy, Sutherland shire Council (Respondent)
File Number(s):	2018/309915
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 Sutherland Shire Council (the Respondent) of Development Application No. DA18/0298 (the DA) for the demolition of existing structures and construction of two separate buildings containing ‘self-storage’ units, industrial units and mezzanine offices. Parking, landscaping, stormwater works, advertising signs and strata subdivision is also proposed.

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 May 2019. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 9 July 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 subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. During the conciliation conference, the parties agreed to terms by which the Applicant may undertake drainage works that require the disconnection of the Council’s drainage infrastructure to allow a new connection to be formed in a manner documented in Trunk Drainage System Design Drawings.

6. The parties agreed that a Deed of Agreement must be entered into for the purposes of reconstructing the Council’s stormwater drainage, the expunging of an existing drainage easement and creation of a new stormwater drainage easement over the new alignment.

7. The Deed of Agreement is also to provide for the consent of the adjoining land owner at 461 – 463 The Boulevarde for the connection of the OSD system to the new drainage system as contained in condition 8 of Annexure ‘A’. I note that the parties have agreed to a deferred commencement condition to this effect.

8. 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 No 55 – Remediation of Land (SEPP 55), and the Sutherland Shire Local Environmental Plan 2015 (SSLEP).

9. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [13]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the IN1 General Industrial zone as identified by the SSLEP, which permits development for the purpose of a ‘Warehouse or distribution centres’ with consent.

2. SEPP 55 applies to the site. I am satisfied that the Detailed Site Investigation prepared by EI Australia dated 19 January 2018 concludes that the site can be made suitable for the development upon completion of Remediation works, in accordance with cl 7(1) of SEPP 55.

10. As the jurisdictional prerequisites to the grant of consent have been addressed, 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.

11. 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.

12. 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.

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

1. The Applicant is granted leave to amend their development application in accordance with the plans referred to in condition 2 of Annexure ‘A’.

2. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) in the agreed amount of $3,500 within 14 days from the date of this order.

3. The appeal is upheld.

4. Development Application No. DA18/0298 for the demolition of existing industrial complex and construction of new light industrial/warehousing premises or distribution centre; and self-storage facility; external wall signage; tenancy signage; and strata subdivision at 459 The Boulevarde, Kirrawee is approved subject to the conditions set out in Annexure ‘A’.

………………………

Tim Horton

Commissioner of the Court

Annexure A (285 KB, pdf)

Plans (12.1 MB, pdf)

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Decision last updated: 23 July 2019