Sunglow Property Development One Pty Ltd v Blacktown City Council

[2019] NSWLEC 1015

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sunglow Property Development One Pty Ltd v Blacktown City Council [2019] NSWLEC 1015
Hearing dates:	Conciliation conference on 15 June 2018 and 19 December 2018
Date of orders:	18 January 2019
Decision date:	18 January 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [8] below
Catchwords:	DEVELOPMENT APPLICATION: Subdivision application; conciliation conference; agreement between the parties; orders
Legislation Cited:	Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 National Parks and Wildlife Act 1974 Roads Act 1993 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land Water Management Act 2000
Category:	Principal judgment
Parties:	Sunglow Property Development One Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: N Eastman (Applicant) Solicitors: Dentons (Applicant) D Loether, Bartier Perry Lawyers (Respondent)
File Number(s):	2018/10666
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the deemed refusal of its development application DA-17-02447. As lodged the application sought consent for: the subdivision of three allotments into 545 residential lots and six residue lots including the construction of roads, stormwater and associated civil works. The development is proposed at 280 Garfield Road East and 259 Riverstone Road, Riverstone (Lots 1, 2 and 3 in DP 523552). 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.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 15 June 2018. With the consent of the parties, a further conciliation conference was listed and held on 19 December 2018. I presided over that conciliation conference.

3. Pursuant to s 64(1) of the LEC Act, the NSW Roads and Maritime Services (RMS) appeared for the Crown in the proceedings. Their interest revolves around the interaction between the proposed development and the upgrade of Garfield Road East which is a classified road within the meaning of Roads Act 1993.

4. Following 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. The proposed development is permissible in the R2 Low Density Residential Zone, SP 2 Infrastructure (Classified Road) and RE1 Public Recreation under the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006.

2. The remaining site area is situated in the Blacktown Local Environmental Plan 2015 and zoned RU4 Primary Production Small Lots. The proposed development is permissible in this zone.

3. The application was lodged with a Phase I Preliminary Site Investigation and a Phase II Detailed Site Investigation for both the sites at 280 Garfield Road East and 259 Riverstone Road. These reports address the precondition at cl 7 of State Environmental Planning Policy No 55—Remediation of Land.

4. The application has been notified in accordance with the relevant development control plan and the submissions have been considered. In particular the concerns of the objector at 283 Garfield Road East were addressed by the agreed evidence of the engineering experts.

5. The development application is Integrated Development under s 91 of the EPA Act and requires approval under:

• Section 90 of National Parks and Wildlife Act 1974 as both items and potential archaeological deposits have been identified on the site;

• Section 91(2) and (3) of the Water Management Act 2000 as the development proposes works within 40m of land identified as a Riparian Protection Area and aquifer interference activities associated with excavation of the site;

6. The development has received the General Terms of Approval from the relevant concurrence authorities (s 4.5 of the EPA Act) and their conditions are incorporated in the attached conditions (refer Condition 2.4 and 2.5).

7. Section 104: Traffic-generating development in State Environmental Planning Policy (Infrastructure) 2007 applies to the development as it proposes direct vehicular or pedestrian access to a classified road. In accordance with s 104(3), I am satisfied that: the Council has written to the RMS; and in reaching an agreement the parties have considered the RMS submission as well as the accessibility of the site and the relevant factors at s 104(3)(b)(ii).

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is granted leave to rely upon the following amended plans, copies of which are contained in Annexure A:

2. The appeal is upheld.

3. Development application DA17-02447, as amended, for a staged subdivision into 479 Torrens Title lots, 8 residue lots, construction of roads, stormwater works and associated civil works over Lot 1 DP 523552 and Lots 1 & 2 DP 1238721, otherwise known as 280 Garfield Road East and 259 Riverstone Road, Riverstone NSW, is approved subject to conditions in Annexure B.

4. The Applicant is to pay the Respondent the amount of $3,840.00 for Council’s Asset Design team to assess each revision of deferred drainage details submitted to Council. Payment is to be made at the time of submission of the material.

……………………….

D M Dickson

Commissioner of the Court

Annexure A

Annexure B

Decision last updated: 21 January 2019