Prasad v Penrith City Council

[2017] NSWLEC 1669

Land and Environment Court

New South Wales

Medium Neutral Citation:	Prasad v Penrith City Council [2017] NSWLEC 1669
Hearing dates:	Conciliation conference on 23 November 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION – appeal against an order - conciliation conference - agreement between the parties - orders
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Robert Prasad (First Applicant) Mantri Prasad (Second Applicant) Penrith City Council (Respondent)
Representation:	Counsel: Mr D Parish (Applicants) Mr S Nash (Respondent) Solicitors: Matthews Dooley & Gibson (Applicants) Sparke Helmore (Respondent)
File Number(s):	2016/385099
Publication restriction:	No

Judgment

1. COMMISSIONER: The subject of this decision concerns an appeal against an order issued by the Council on 6 December 2016 pursuant to item 12 of s121B of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) relating to fill material on the site owned by the applicants at 1101-1105 Mamre Road, Kemps Creek.

2. 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. An issue arose concerning whether the appeal could be dealt with in the same proceedings as another appeal against a separate order issued by the Council on the same day and resolved by consent orders in these proceedings. In particular, a question arises regarding whether those two appeals should have been accepted in the one originating process. However, in circumstances where, firstly, the issues regarding the other order were resolved by consent orders and not disposed of by an agreement under s 34(3), and, secondly, this appeal has been resolved by agreement under s 34(3), I am satisfied that the decision is 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 the powers available to the Court under ss 16 and 63 of the Civil Procedure Act 2005 would allow the Court to resolve any irregularity and make directions as appropriate.

3. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”. 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.

4. 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.

5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld in part.

2. Order 12(b) in the Table to section 121B of the Environmental Planning and Assessment Act 1979 given by the Respondent to the First and Second Applicants dated 6 December 2016 (Order) is modified by deleting the ‘Terms of the Order’ table referred to therein and inserting the following terms in lieu:

Terms of Order

Timeframe within which compliance is required

1. Cease the importation of unauthorised fill material on the premises at 1101-1105 Mamre Road, Kemps Creek (Premises)

For the purposes of this Order, “fill” is defined as “any material or substance brought onto the Premises for the purposes of temporarily or permanently depositing of that material or substance on the Premises”.

Immediately

2. Install and maintain sediment and erosion controls around the unauthorised fill material, which are to prevent any material from entering any drainage channel, adjoining properties or nearby waterway.

Immediately

3. Implement and maintain dust suppression methods, to the satisfaction of Council, which are to minimise any dust or any other air impurity from the unauthorised fill material leaving the Premises. 

Immediately

4. Engage with NSW Environment Protection Agency and Resource Recovery Department to seek a specific resource recovery order and exemption to allow the crushed glass fill to remain on the site.

By 31 March, 2018

5. Provide Council with a waste classification of the unauthorised fill. The waste classification must be undertaken by a suitably qualified and experienced consultant and in accordance with the Environmental Protection Authority’s Waste Classification Guidelines.

By 28 April, 2018

6. Lodge any Development Application with Council that may be necessary seeking the granting of approval for use of the driveway, hardstand and filled areas on the Premises and any such exemption.

By 26 May, 2018

7. If the Applicants do not receive any consent, order, or exemption as required in Items 4 to 6 of the Order for the use of some or all of the fill, then in respect of some or all of the fill for which there is no consent, order, or exemption (the unauthorised fill), Orders 8 to 13 below come into effect

By 25 October 2018

8. Remove all unauthorised fill from the Premises.

By 26 October 2018

9. Within seven (7) days of the unauthorised fill being disposed of, provide Council documentation that demonstrates the lawful disposal of the unauthorised fill including, but not limited to, transportation records and waste facility receipts.

By 2 November 2018

10. Within thirty (30) days of the unauthorised fill being disposed of, cause a suitably qualified and experienced consultant to undertake an assessment of the Premises to determine if the unauthorised fill has caused any contamination. The assessment must be undertaken in accordance with the Environmental Protection Authority’s Contamination Guidelines.

By 27 November 2018

11. Provide Council with a copy of a survey which certifies that the Premises has been returned to the pre-existing natural ground levels documented in the survey dated 9 October 2014 by D & M Consulting Surveyor (as attached hereto at Annexure A).

By 27 November 2018

12. Stabilise any part of the Premises where the unauthorised fill has been removed with spray grass or similar vegetative cover.

By 27 November 2018

13. Provide Council with a copy of the assessment report referred to in Item 10 of this Order.

In the event that the assessment identifies that the land requires remediation, the appropriate approvals are to be obtained from Council before any remediation works commence.

By 22 December 2018

……………………….

Commissioner Gray