The Trustee for Platinum Planning Solutions Unit Trust t/as Platinum Planning Solutions v Campbelltown City Council

[2023] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for Platinum Planning Solutions Unit Trust t/as Platinum Planning Solutions v Campbelltown City Council [2023] NSWLEC 1600

Hearing dates:

Conciliation conference held on 21 and 22 September 2023

Date of orders:

12 October 2023

Decision date:

12 October 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) Leave is granted to the Applicant in these proceedings to amend the name of the applicant to Platinum Planning Solutions.

(2) The Applicant to attend the Registry immediately to pay the difference in the filing fee for a corporation.

(3) Leave is granted to the Applicant to rely on the amended documentation listed in paragraph [19](1).

(4) The appeal is upheld.

(5) Development Application No. 2394/2022/DA-DW for the construction of a two-storey dwelling with attached garage at 67 Bruce Ferguson Avenue, Bardia, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 10.3, 10.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 1, ss 18, 34

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Statement Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120

Category:

Principal judgment

Parties:

The Trustee for Platinum Planning Solutions Unit Trust ABN 48 623 623 997 t/as Platinum Planning Solutions (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
N Hammond (Respondent)

Solicitors:
Sadek Lawyers Pty Ltd (Applicant)
Shaw Reynolds Lawyers Pty Ltd (Respondent)

File Number(s):

2023/123966

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. 2394/2022/DA-DW seeking consent for the construction of a two-storey dwelling with attached garage (the Proposed Development) at 67 Bruce Ferguson Avenue, Bardia legally described as Lot 4078 in DP 1200785 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 21 and 22 September 2023. I presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions. The basis of the agreement is that the proposed building be shifted 500 mm to the east, so that the side setback on the eastern side is 2.5m and the side setback on the western side is 4.51m which is reflected in condition 2 in Annexure A.

4. The Development Application was made by Platinum Planning Solutions, being the business name for The Trustee for Platinum Planning Solutions Unit Trust ABN 48 623 623 997, and the Development Application form filed with the Class 1 Application shows that the owner of the Site, Tauha Jablaoui provided consent to lodge the Development Application which is now before the Court. The Class 1 proceedings were commenced by Tauha Jablaoui and the parties agreed to the Applicant being changed to Platinum Planning Solutions.

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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

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.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note to which I have had regard in setting out my reasons for being satisfied that the jurisdictional prerequisites have been satisfied.

8. The Development Application was notified and publicly exhibited between 30 June 2022 and 22 July 2022. No submissions or objections were received to the Proposed Development.

9. The relevant planning instrument is State Environmental Planning Policy (Precincts – Western Parkland City) 2021 – Appendix 1 (SEPP WPC – Appendix 1)). The Site is located within the State significant precinct – Edmondson Park South and is zoned C4 Environmental Living and the Proposed Development is permissible with consent in the C4 zone.

10. The height of building’s development standard prescribed in s 18 of the SEPP WPC – Appendix 1 is 9.5m for the Site and the Proposed Development complies with the development standard with a proposed dwelling with maximum height of building at 7.771m.

11. In accordance with s 34 of SEPP WPC – Appendix 1, the Site includes access to public utility infrastructure as set out in the Statement of Environmental Effects prepared by A Betros of ABC Planning at page 15 and filed with the Class 1 Application.

12. The Site is mapped as bushfire prone land pursuant to s 10.3 of the EPA Act, and the Applicant relies on the Bush Fire Assessment Report prepared by Matthew Toghill, BPAD Certified Practitioner dated 25 May 2021 filed with the Class 1 Application which concludes as follows:

“The proposed development is in infill development as defined within Chapter 7 of Planning for Bushfire Protection 2019 and this report has been prepared in accordance with the requirements of Section 4.14 of the Environment (sic) Planning and Assessment Act.

…

Following a site assessment, it was determined the distance of the development from the closest hazard would keep the Bushfire Attack Level (BAL) to BAL-29, in accordance with the methodology described in the PBP. The development also meets performance criteria as set out in chapter 7 of PBP in relation to APZ’s, siting and design, construction standards, access and egress requirements, water and utility services and landscaping.”

13. A consent authority is required to consider the contamination status of the Site pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Site was previously part of the former Ingleburn Defence Site. The following documents have been considered:

1. Planning Certificate issued under s 10.7 of the EPA Act dated 1 April 2021, Part 7(e), which provides that a site audit statement was prepared in July 2011 and concluded that the land is suitable for residential use with minimal opportunity for soil access subject to compliance with two environmental management plans, referred to as “ERM (2011b)” and “ERM (2011e)” copies of which have been provided to the Court.

2. “Statement of Works Advice DA 473/2014/DA-S – Stage 1 New Breeze Development Works, MacDonald Road, Edmondson Park, NSW” dated 1 May 2017, which reviews and reports on site contamination and remediation works carried out on a larger portion of land that includes the Site as per Figure 2. The statement concludes that areas containing asbestos have been remediated and clearance documentation issued. And that there was no requirement for on-going asbestos management protocols during future use of the Site for residential purposes.

3. Conditions of consent at Annexure A which includes an ‘unexpected finds’ protocol at condition 44, and the following condition:

“23. Land Contamination Management

Prior to the issue of a construction certificate, a suitably qualified contamination expert is to prepare a report confirming that the site is not contaminated (Report). Should the findings of that Report necessitate remediation, a Remedial Action Plan is to be submitted to Council’s Manager, Development Assessment for review and approval.

Remediation works must only commence after Council’s approval of the Remedial Action Plan.”

14. The Court is satisfied that the above documents together with conditions 43 and 52 as to remediation works, if any, and the requirement of confirmation of any remediation works prior to the Principal Certifier issuing an Occupation Certificate appropriately addresses and complies with s 4.6 of the Resilience and Hazards SEPP.

15. The Applicant has provided an acoustic report prepared by RWDI Australia Pty Ltd dated 19 September 2023, which has been incorporated into the conditions of consent at condition 16 and on that basis the Court is satisfied that the matters relating to the impact of road noise or vibration on the Proposed Development pursuant to s 2.120(3) of the Statement Environmental Planning Policy (Transport and Infrastructure) 2021 are satisfied.

16. Finally, the Proposed Development includes a BASIX Certificate filed with the Class 1 Application in compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

17. In accordance with the reasons set out in this judgment, 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.

18. 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.

Notations

19. The Court notes that:

1. Campbelltown City Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. 2394/2022/DA-DW in accordance with the documents listed below:

1. Amended Statement of Environmental Effects prepared by ABC Planning, dated September 2023; and

2. Acoustic Report prepared by RWDI Australia, dated 19 September 2023.

2. The Development Application was lodged with the Respondent on 29 June 2022 by Platinum Planning Solutions. Consent to the lodgement of the Development Application was given on 6 June 2022 by Mr Tauha Jablaoui, the owner of the Site.

3. Whereas these proceedings have been commenced by Mr Jablaoui. The respondent, Campbelltown City Council, agrees to the name of the Applicant in these proceedings being amended to Platinum Planning Solutions.

Orders

20. The Court orders:

1. Leave is granted to the Applicant in these proceedings to amend the name of the applicant to Platinum Planning Solutions.

2. The Applicant to attend the Registry immediately to pay the difference in the filing fee for a corporation.

3. Leave is granted to the Applicant to rely on the amended documentation listed above in paragraph [19](1)].

4. The appeal is upheld.

5. Development Application No. 2394/2022/DA-DW for the construction of a two-storey dwelling with attached garage at 67 Bruce Ferguson Avenue, Bardia, is determined by a grant of consent subject to conditions contained in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (287063, pdf)

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Decision last updated: 12 October 2023