RWA Developers Pty Ltd v Auburn Council

[2003] NSWLEC 445

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Land and Environment Court

of New South Wales

CITATION:

RWA Developers Pty Ltd v Auburn Council [2003] NSWLEC 445

PARTIES:

APPLICANT:
RWA Developers Pty Ltd

RESPONDENT:
Auburn Council

FILE NUMBER(S):

10009 of 2003

CORAM:

Bignold J

KEY ISSUES:

Appeal - Development Consent :- Refusal of Development Consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 97

CASES CITED:

DATES OF HEARING:

26/03/2003

EX TEMPORE
JUDGMENT DATE :

03/26/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr R M O'Gorman-Hughes, Solicitor

SOLICITORS
Deacons

RESPONDENT:
Mr S N Griffiths, Solicitors

SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

26 March 2003

10009 of 2003 RWA DEVELOPERS PTY LIMITED V AUBURN COUNCIL

JUDGMENT

HIS HONOUR

1. This is an appeal pursuant to of the Environmental Planning and Assessment Act, s 97 against the determination of the Council refusing development consent to an application to demolish an existing warehouse building situate at premises known as No 7, Samuel Street, Lidcombe, and to erect a residential flat building on the site containing some eight flats.

2. The matter comes to the Court today upon earlier notice that the parties had settled the case and were asking the Court to give effect to that settlement. To that extent consent orders have been handed up to the Court, which propose by consent the upholding of the appeal, the granting of development consent to the aforesaid development, subject to conditions of consent which have been prepared and a document to be annexed to the short minutes.

3. The settlement is the culmination of negotiations between the parties following the lodgement of the original development application, which had been the subject of the Council’s prior determination refusing development consent. The Council took that course despite recommendations from its planners that approval be granted subject to deferred commencement conditions nominated in the planning report.

4. The application had been notified to the public both in its original form and in the two subsequent amended forms that it has taken. On no occasion has any objection been received by the Council either in respect of the original or the first amendment or the second amendment. It is the second amended plans that are before the Court today for which consent is sought and to which the draft consent orders are addressed.

5. Following the filing of the appeal the developer entered into negotiations with the Council with a view to resolving the matters that had caused the Council’s original decision to refuse development consent. In particular the developer addressed the two matters concerning site contamination, clean up and stormwater drainage, which had been the subject of the planner’s recommendations for deferred commencement conditions, and other aspects which had informed the Council’s decision to refuse consent.

6. These matters are summarised in a report prepared by the Council’s development team leader, Mr Gordon Edgar, a copy of which report has been tendered as Annexure B. In that report, Mr Edgar concludes that the amended proposal has been fully assessed in accordance with s 79C of the Act, that the reasons for the original decision refusing consent and the outstanding issues that had been previously highlighted which had originally resulted in a recommendation for the imposition of deferred commencement conditions have all been resolved to the satisfaction of the Council. It was in those circumstances that he recommended that the Council enter into the consent orders which are now before the Court.

7. I am satisfied, particularly in light of the two planning reports of the Council’s servants which have come into evidence, exhibits A and B, that it is entirely appropriate for the Court to give effect to the settlement reached between the parties as is reflected in the short minutes of order which have been prepared by the parties’ legal representatives and signed by them, which I too shall sign and place with the Court papers.

8. Accordingly, by consent, I make the orders set forth in the short minutes. Those short minutes include, as Annexure A, the detailed conditions of development consent agreed between the parties. The exhibits shall be retained by the Court. Gentlemen, with your leave I just altered Order 3 to give effect to that order. I note that the plans referred to in Condition 1 of the conditions of approval are the plans being Exhibit 1 in these proceedings.