Revolution Surveys Pty Ltd v Fairfield City Council

[2022] NSWLEC 1589

Land and Environment Court

New South Wales

Medium Neutral Citation:

Revolution Surveys Pty Ltd v Fairfield City Council [2022] NSWLEC 1589

Hearing dates:

Conciliation conference 24 October 2022

Date of orders:

28 October 2022

Decision date:

28 October 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

1) The Applicant is to pay the Respondent’s costs thrown away as a result of the further amendment to the development application pursuant to section 8.15 (3) of the Environmental Planning and Assessment Act 1979. The quantum of the thrown away costs are to be agreed within 28 days or if the parties cannot agree within 28 days they are to be assessed.

2) The Appeal is upheld.

3) Development Application No DA/375.1/2020 (as amended) for a Torrens Title subdivision of Lot 9 DP 27041 into two lots to create Lots 91 and 92 and thereafter: on proposed Lot 91 the demolition of existing dwelling, construction of a single storey dwelling and freestanding garage; and, on proposed Lot 92 the demolition of existing dwelling and the construction of a single storey dwelling, is granted subject to conditions of consent at Annexure A.

Catchwords:

APPEAL – development application for a two-lot subdivision and construction of dwelling houses on each lot – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.18, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Fairfield Local Environmental Plan 2013 cll 2.6, 4.1, 4.3, 6.2

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Category:

Principal judgment

Parties:

Revolution Surveys Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
M Fozzard (Applicant)
S Schneider (Solicitor) (Respondent)

Solicitors:
Vaughan Zarb & Co Solicitors (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2022/35720

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for a two-lot subdivision of land at 328-334 Horsley Road, Horsley Park, and for the construction of dwelling houses on the subdivided lots. The development application was refused by the respondent on 8 February 2021. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 24 October 2022. I presided over the conciliation conference.

3. At the conciliation conference, 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 was acceptable to the parties. The agreement was subsequently filed on the same date. The agreement was reached following amendments to the development application, which were agreed to by the Council and were lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amended development application removes an earlier proposal for the construction of secondary dwellings on the subdivided lots, removes an earlier proposal for the removal of a dam that is currently on the site, and provides an updated stormwater plan and an updated landscape plan.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a joint jurisdictional statement. I have considered the contents of the statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents in the Amended Plans bundle filed 2 September 2022, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned RU 4 Primary Production Small Lots pursuant to the Fairfield Local Environmental Plan 2013 (FLEP), in which dwelling houses are permissible with development consent. The subdivision of land is also permissible with consent, pursuant to cl 2.6 of the FLEP.

• The proposed development complies with the development standards for the minimum subdivision lot size of 10,000m² pursuant to cl 4.1 of the FLEP and the building height of 9m pursuant to cl 4.3 of the FLEP.

• The development application includes some minor earthworks to achieve the proposed ground level of the dwellings. Based on Detailed Site Investigation report dated 2 August 2022, I have considered the matters set out in cl 6.2(3) of the FLEP.

• The amended development application is accompanied by a BASIX Certificate for each proposed dwelling, in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Detailed Site Investigation report dated 2 August 2022, the site can be made suitable for the development, subject to implementation of a Remedial Action Plan. A Remedial Action Plan has been prepared and is required to be implemented by the conditions of development consent.

• The development application was notified for 14 days from 1 October 2020 in accordance with s 4.18 of the EPA Act. No submissions were received.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, 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.

8. The Court notes that:

1. The applicant, with the agreement of the respondent:

1. amended Development Application No DA/375.1/2020 made to the respondent on 29 September 2020 by lodging the documents in the Schedule below on the NSW planning portal on 25 October 2022; and,

2. filed those documents with the Court on 24 October 2022:

1. SCHEDULE

2. A. Stormwater drainage Plans, Revision 4, 17 October 2022, Drawings No STW-01, STW-02, STW-03, STW-04, STW-05, STW-06, STW-07, Sheet 1-7, prepared by Rothshire Pty Ltd.

3. B. Architectural Plans, Prepared by Rothshire Pty Ltd, as follows:

4. Cover Page, Sheet No. DA-000, Revision 4, dated 17 October 2022;

5. Demolition Plan, Sheet No. DA-020, Revision 4, dated 17 October 2022;

6. Site Plan Lot 91, Sheet No. DA-110, Revision 4, dated 17 October 2022;

7. Site Plan Lot 92, Sheet No. DA-120, Revision 4, dated 17 October 2022;

8. Proposed Landscape Plan, Sheet No. DA-700, Revision 4, dated 17 October 2022;

9. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the further amendment to the development application pursuant to section 8.15 (3) of the Environmental Planning and Assessment Act 1979. The quantum of the thrown away costs are to be agreed within 28 days or if the parties cannot agree within 28 days they are to be assessed.

2. The Appeal is upheld.

3. Development Application No DA/375.1/2020 (as amended) for a Torrens Title subdivision of Lot 9 DP 27041 into two lots to create Lots 91 and 92 and thereafter: on proposed Lot 91 the demolition of existing dwelling, construction of a single storey dwelling and freestanding garage; and, on proposed Lot 92 the demolition of existing dwelling and the construction of a single storey dwelling, is granted subject to conditions of consent at Annexure A.

……………………….

J Gray

Commissioner of the Court

**********

Annexure A

Decision last updated: 28 October 2022