Statewide Planning Pty Ltd v Penrith City Council

[2021] NSWLEC 1804

Land and Environment Court

New South Wales

Medium Neutral Citation:

Statewide Planning Pty Ltd v Penrith City Council [2021] NSWLEC 1804

Hearing dates:

Conciliation conference on 22 December 2021

Date of orders:

24 December 2021

Decision date:

24 December 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The Applicant is granted leave to rely upon the amended and supplementary material identified in Annexure ‘A’.

(2) The appeal is upheld.

(3) Subdivision certificate application No. SC19/0045 for the Torrens Title subdivision of Lot 128 DP 1215199, otherwise known as 55 French Street, and 22 Major Tomkins Parade, Werrington NSW 2747 is approved.

(4) The Applicant must take all steps necessary to:

a. provide an amended administration sheet accompanying the s 88B Instrument (including the written consent in the form required of any other required party) which releases the restrictions on the use of land thirdly, fourthly and fifthly referred to in the s 88B instrument annexed to DP1215199 from the title of Lot 129 in Deposited Plan 1215199;

b. remove dealing AR510274 being the mortgage to MCH Agency Services Pty Ltd from the title of Lot 129 in Deposited Plan 1215199; and

c. pay $6,560 as a bond for any remaining ecological/ landscaping works.

(5) The Respondent is directed to sign and provide a subdivision certificate and the accompanying s 88B instrument and Administration Sheet (as required for registration with NSW Land Registry Services) providing for the dedication of Lot 129 DP 1215199 to the Respondent free of cost within 5 business days of the release of the restrictions on user referred to in paragraph 4(a) and 4(b) above, or otherwise as agreed to by Council.

(6) No order as to costs.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.15, 8.16

Land and Environment Court Act 1979, s 34

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021)

Category:

Principal judgment

Parties:

Statewide Planning Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
T Robertson (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Colin Biggers & Paisley Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/105875

Publication restriction:

No

Judgment

1. COMMISSIONER: Statewide Planning Pty Ltd (the Applicant) has appealed the deemed refusal by Penrith City Council (the Respondent) of its application for a Subdivision Certificate lodged by the Applicant (SC19/0045) in relation to Development Consent No. DA16/0566.03 for stage 3 of a residential subdivision (the Approved Development) at 55 French Street and 22 Major Tomkins Parade, Werrington (the Subject Site).

2. The Applicant’s appeal is made under s 8.16 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and falls within class one of the Court’s jurisdiction.

3. The Parties have advised that:

1. on 18 September 2019, an application for a subdivision certificate was lodged with Penrith City Council (Respondent);

2. on 7 April 2020, an appeal was commenced in Class 1 of the NSW Land and Environment Court pursuant to s 8.16 of the EP&A Act against the deemed refusal of the application for the subdivision certificate;

3. on 5 February 2021, the application for the subdivision certificate was refused;

4. the Parties are in the process of having Lot 129 DP1215199 (which is a riparian corridor that is to be dedicated to the Respondent) dedicated from the Applicant to the Respondent.

4. On 22 December 2021, the Parties participated in a s 34 conciliation conference convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference.

5. At 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 involved the Court upholding the appeal and granting consent to the Applicant’s subdivision application.

6. Under s 34(3) of the Land and Environment Court Act 1979 (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.

7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. section 6.15(1) of the EP&A Act identifies the circumstances in which a subdivision certificate must not be issued, having regard to the provisions of s 6.15(1) the Parties agree that the subdivision certificate can be issued once Lot 129 DP1215199 has been dedicated to the Respondent because:

1. the subdivision is not prohibited by or under the EP&A Act;

2. a development consent is in force with respect to the subdivision being Development Consent No. DA16/0566.03;

3. all the conditions of Development Consent No. DA16/0566.03 required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision will have been satisfied;

4. all the requirements of the Voluntary Planning Agreement entered into between the Respondent and Settlers Estate Pty Ltd on 27 April 2016 that are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision will have been satisfied.

2. section 6.15(2) of the EP&A Act also identifies circumstances in which a subdivision certificate must not be issued and having regard to the provisions of s 6.15(2), the Parties agree that the subdivision certificate can be issued because either:

1. the work has been completed; or

2. to the extent that work is not completed, agreement has been reached between the Parties as to the payment by the Applicant to the Respondent of the cost of carrying out certain works which have been bonded.

8. Having considered the advice of the Parties, provided above at [7], I agree, that the jurisdictional prerequisites to the proper exercise of the power to approve the subdivision certificate application have been met and that the subdivision certificate should be issued.

9. I am further 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.

10. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

11. 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.

Orders

12. The Court orders:

1. The Applicant is granted leave to rely upon the amended and supplementary material identified in Annexure ‘A’.

2. The appeal is upheld.

3. Subdivision certificate application No. SC19/0045 for the Torrens Title subdivision of Lot 128 DP 1215199, otherwise known as 55 French Street, and 22 Major Tomkins Parade, Werrington NSW 2747 is approved.

4. The Applicant must take all steps necessary to:

1. provide an amended administration sheet accompanying the s 88B Instrument (including the written consent in the form required of any other required party) which releases the restrictions on the use of land thirdly, fourthly and fifthly referred to in the s 88B instrument annexed to DP1215199 from the title of Lot 129 in Deposited Plan 1215199;

2. remove dealing AR510274 being the mortgage to MCH Agency Services Pty Ltd from the title of Lot 129 in Deposited Plan 1215199; and

3. pay $6,560 as a bond for any remaining ecological/ landscaping works.

5. The Respondent is directed to sign and provide a subdivision certificate and the accompanying s 88B instrument and Administration Sheet (as required for registration with NSW Land Registry Services) providing for the dedication of Lot 129 DP 1215199 to the Respondent free of cost within 5 business days of the release of the restrictions on user referred to in paragraph 4(a) and 4(b) above, or otherwise as agreed to by Council.

6. No order as to costs.

………………………..

M Chilcott

Commissioner of the Court

(Annexure A) (149064, pdf)

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Decision last updated: 24 December 2021