RPG Botany Pty Ltd v Bayside Council

[2019] NSWLEC 1361

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	RPG Botany Pty Ltd v Bayside Council [2019] NSWLEC 1361
Hearing dates:	Conciliation conference on 26 July 2019
Date of orders:	02 August 2019
Decision date:	02 August 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   Leave is granted to rely on amended plans in the annexure marked “B” to this judgment. (2) The Applicant is to pay the Respondent's costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 14 days. (3)   The appeal is upheld. (4)   Consent is granted to development application DA 10.2018.1056.1 lodged on 18 April 2018 for a warehouse building including demolition of existing structures and construction of a warehouse and industrial units and strata subdivision of land into 57 lots on Lot 2 DP 1029291 located at 45-47 Green St, Banksmeadow, 2019, NSW, subject to the conditions contained in the annexure marked “A” and in accordance with the plans marked “B” to this judgment.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – 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 State Environmental Planning Policy (Three Ports) 2013 Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	RPG Botany Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Solicitors: M Baker, Minter Ellison (Applicant) A Epstein, HWL Ebsworth (Respondent)
File Number(s):	2018/190583
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Bayside Council's deemed refusal of Development Application No. 2018/1056.

2. The applicant seeks consent for development including demolition of existing structures and construction of a warehouse and industrial units and strata subdivision of land into 57 lots on Lot 2 DP 1029291 located at 45-47 Green Street, Banksmeadow.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 26 July 2019, and at which I presided. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties outlined jurisdictional matters of relevance in these proceedings. In regard to jurisdiction, I note the following:

• The subject site is located within the IN1 – General Industrial Zone under State Environmental Planning Policy (Three Ports) 2013 (Three Ports SEPP) and the proposal is permissible under that zone. In accordance with cl 14(2) of the Three Ports SEPP, I have had regard to the relevant zone objectives.

• The proposal does not breach any development standards contained in relevant environmental planning instruments.

• In accordance with cl 7 (1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), a Preliminary Environmental Site Assessment was prepared that outlines that the site is suitable for the proposed development in its current state. I am satisfied in regard to cl 7(1) of SEPP 55 including in regard to the potential for new information that may come to light during demolition or construction in regard to site contamination, noting the inclusion of a condition requiring notification should this occur.

• On the basis of the advice of the parties, I am satisfied that due consideration has been given to public submissions.

7. 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. 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. I note that I have had no direct regard to the merits of the application in coming to this position.

8. The Court orders:

1. Leave is granted to rely on amended plans in the annexure marked “B” to this judgment.

2. The Applicant is to pay the Respondent's costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 14 days.

3. The appeal is upheld.

4. Consent is granted to development application DA 10.2018.1056.1 lodged on 18 April 2018 for a warehouse building including demolition of existing structures and construction of a warehouse and industrial units and strata subdivision of land into 57 lots on Lot 2 DP 1029291 located at 45-47 Green St, Banksmeadow, 2019, NSW, subject to the conditions contained in the annexure marked “A” and in accordance with the plans marked “B” to this judgment.

Addendum made on 26 August 2019

9. The parties have drawn to the Court’s attention that the signed agreement between the parties under s 34 of LEC Act referenced the proposal as including “strata subdivision of land into 57 lots”. The original judgement handed down on 2 August 2019 instead made reference to what had been an earlier subdivision configuration, prior to the final agreement, which included “strata subdivision of land into 61 lots”. The explanation of this occurrence is concerned with the exchange of word processing files between the parties and the Court to assist the preparation of the original judgement handed down on 2 August 2019.

10. I am satisfied that this is an accidental slip that can be amended under Uniform Civil Procedure Rules 2005 (UCPR) r 36.17, which allows a correction of a “clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order.” Accordingly I make orders in chambers as follows:

1. By consent and pursuant to UCPR 36.17, the decision in these proceedings, published on 2 August 2019, be varied so that the reference to “61 lots” at paragraph 2 and Order 4 in paragraph 8 is replaced with “57 lots”’.

……………………….

P Walsh

Commissioner of the Court

Annexure A (287 KB)

Annexure B Part 1 (1.95 MB)

Annexure B Part 2 (1.74 MB)

Annexure B Part 3r (1.38 MB)

Annexure B Part 4 (1.88 MB)

Annexure B Part 5r (891 KB)

Annexure B Part 6 (1.51 MB)

Annexure B Part 7 (1.71 MB)

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Amendments

26 August 2019 - By consent and pursuant to UCPR 36.17, the decision in these proceedings, published on 2 August 2019, be varied so that the reference to “61 lots” at paragraph 2 and Order 4 in paragraph 8 is replaced with “57 lots”’.