St Marys Land Limited v Blacktown City Council

[2019] NSWLEC 1279

Land and Environment Court

New South Wales

Medium Neutral Citation:	St Marys Land Limited v Blacktown City Council [2019] NSWLEC 1279
Hearing dates:	Conciliation conference on 23 May 2019; 14 June 2019
Date of orders:	20 June 2019
Decision date:	20 June 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   The applicant is granted leave to amend its application, and the plans filed with the Court on 9 October 2018, in accordance with condition 4.1.3 of 'Annexure A'. (2)   The Applicant is to pay the Council's costs thrown away by reason of the leave granted in (1) in the agreed amount of $7,120.00 (not including any GST). (3)   The appeal is upheld. (4)   Development Application DA-18-00559 lodged on 29 March 2018 as amended by order (1) above (Development Application), seeking development consent for the construction of approximately 1.5km of the East West Connector Road (including bulk earthworks, importation and reuse of fill, retaining walls, fauna, crossings, stormwater and culvert crossings, widening of existing road footprint, pedestrian and cycle paths) and construction of a new Ropes Creek Bridge (including installing of new bridge piers, new support structures, and new bridge deck including handrails), Ropes Crossing, including, temporary use of access tracks and remediation comprising Stage 1 of the East West Connector Road development overs Lot 2 in DP 1203565, and part of Lots 5 and 6 in DP 1203565, is approved subject to the conditions set out in 'Annexure A' attached hereto.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Regional Environmental Plan No 30 – St Marys
Category:	Principal judgment
Parties:	St Marys Land Limited (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: J Farrell (Applicant)   Solicitors: Minter Ellison (Applicant) S Simington, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/308455
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal by Blacktown City Council (hereafter the Council) of Development Application (DA) 18-00559, which seeks to construct 1.5 km of road, with two bridges and associated earthworks, stormwater drainage and infrastructure on Lot 2 in DP 1203565, Part Lot 5 DP 1203565 and Part Lot 6 DP 1203565, which forms part of Ropes Crossing Boulevard, Ropes Crossing.

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court is required to make a determination pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 23 May and 14 June 2019. I have presided over the conciliation conferences. There were no objections heard at this conciliation and no site view undertaken.

4. Following 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 is to uphold the appeal and grant consent to (amended) DA 18-00559 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act to grant consent to the DA (18-00559) under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act, as consistency with the Sydney Regional Environmental Plan No 30 – St Marys (SREP 30).

7. The parties explained that the amended plans and supporting document attached to this amended DA show a development that generally satisfies the requirements as set out in the SREP 30 and is for the purpose of a road that is permissible.

8. The parties agree that the amended DA together with the conditions of consent demonstrates a development that is consistent with the relevant performance and zone objectives, and any other requirements, as required in cl 20(1)(a) of the SREP 30.

9. The parties are satisfied that there are no inconsistencies with the: performance objectives as set out in cll 21 to 35 of the SREP 30; and zone objectives described in cll 44(2), 50, 51 and 60.

10. The respondent has advised the Court that the Sydney Central City Planning Panel has not indicated a request to be involved in the appeal proceedings and the agreement is made between the parties on this basis.

11. I am therefore satisfied that there are no jurisdictional impediments to this agreement made by the parties and that the amended DA, based on the amended plans and the agreed conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act.

12. 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.

13. The Court orders:

1. The applicant is granted leave to amend its application, and the plans filed with the Court on 9 October 2018, in accordance with condition 4.1.3 of 'Annexure A'.

2. The Applicant is to pay the Council's costs thrown away by reason of the leave granted in (1) in the agreed amount of $7,120.00 (not including any GST).

3. The appeal is upheld.

4. Development Application DA-18-00559 lodged on 29 March 2018 as amended by order (1) above (Development Application), seeking development consent for the construction of approximately 1.5km of the East West Connector Road (including bulk earthworks, importation and reuse of fill, retaining walls, fauna, crossings, stormwater and culvert crossings, widening of existing road footprint, pedestrian and cycle paths) and construction of a new Ropes Creek Bridge (including installing of new bridge piers, new support structures, and new bridge deck including handrails), Ropes Crossing, including, temporary use of access tracks and remediation comprising Stage 1 of the East West Connector Road development overs Lot 2 in DP 1203565, and part of Lots 5 and 6 in DP 1203565, is approved subject to the conditions set out in 'Annexure A' attached hereto.

………………………

S Bish

Commissioner of the Court

Annexure A (145 KB)

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Decision last updated: 20 June 2019