Universal Property Group Pty Limited v Blacktown City Council

[2020] NSWLEC 1300

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Universal Property Group Pty Limited v Blacktown City Council [2020] NSWLEC 1300

Hearing dates:

Conciliation conference on 1 July 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [17] below

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Category:

Principal judgment

Parties:

Universal Property Group Pty Limited (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/46583

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the deemed refusal of development application DA-18-00159 (‘DA’) by Blacktown City Council (‘Council’).

2. I rely on Council’s Amended Statement of Facts and Contentions filed with the Court on 27 May 2020 for much of the descriptive material which follows.

3. The DA (as now amended after the Court granted leave for changes to the application on 5 May 2020 and 26 June 2020) seeks consent for the consolidation of the existing lots and subdivision into 13 “superlots” (including one residue lot). The stated intention is to facilitate future residential development, associated subdivision works including public road construction, drainage works, dam dewatering and tree removal.

4. The land to which the DA relates is indicated as being some 11.4ha in area and is described as Lots 20 and 21 DP 1191512, and Lots 5-11 DP 1245610 and Lot 60 DP 1196729, being 1032, 1036, 1060, 1070, 1080 and Part 1082 Richmond Road and 230, 232 and 234 Grange Avenue, Marsden Park (‘site’).

5. The DA now also proposes the placement of fill on the adjoining land which is owned by the Council and is identified as Lot 32 DP 1090993. A separate condition of consent has been proposed in relation to the works on Lot 32 DP 1090993 under s 4.17(1)(f) of the EPA Act.

6. The provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (‘Growth Centres SEPP’) apply to the site. Under cl 7 of Growth Centres SEPP, the provisions of Appendix 12 known as “Blacktown Growth Centres Precinct Plan” (‘BGC Precinct Plan’) apply to the application.

Conciliation and agreement between the parties

7. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), which was held on 1 July 2020. At the conciliation conference, and after leave had been earlier sought and granted for amending plans, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

9. 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.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised.

Jurisdiction

11. The parties advised on jurisdictional matters of relevance in these proceedings in a written statement provided to the Court on 30 June 2020, which explained how such matters have been or could be satisfied. In regard to jurisdiction, noting this advice, I find that:

1. The site is zoned R3 Medium Density Residential, SP2 Local Drainage and RE1 Public Recreation under the provisions of the Growth Centres SEPP. The proposed works under the DA are permissible with development consent.

2. The site is situated within the Marsden Park Precinct of the Growth Centres SEPP and therefore the provisions of Appendix 12 apply.

3. Appendix 12 includes provisions which establish jurisdictional tests applicable to the DA, and I respond relevantly below:

1. In regard to cl 4.1: the site is not shown on the Lot Size Map.

2. In regard to cl 4.1AB(9)(b): the site has a minimum density of 35 dwelling per hectare on the Growth Centres SEPP’s Residential Density Map. All proposed lots are over 1,000m² as required by cl 4.1AB(9)(b) in the applicable circumstances.

3. In regard to cl 6.1(1): the parties have advised on certain particulars and I am satisfied that public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

4. In regard to cl 6.3 and cl 6.4: the site is not within an existing native vegetation area or native vegetation retention area as shown on the Native Vegetation Protection Map or a riparian protection area as shown on the Riparian Protection Area Map to the Growth Centres SEPP. Therefore, these clauses do not apply.

12. I turn to State Environmental Planning Policy No 55 – Remediation of Land ('SEPP 55'). Clause 7(1) requires a consent authority to consider the contamination and remediation of land when determining a development application. There has been considerable investigation of contamination and remediation requirements for this DA. Condition 6.1.1 refers to a series of reports prepared by specialists in regard to the site, and which conclude that the site is suitable for the proposed development, subject to nominated recommendations. Condition 6.1.1 requires that the recommendations of these reports be implemented. Condition 6.1.2 requires cessation of work should any contaminated material be unearthed during construction works, and any necessary remediation occur. I also note the advice contained in Joint Engineering Expert Report (filed 19 June 2020). Appendix C to this report, in regard to filling on Lot 32 DP1090993 (see [5]), included specialist advice verifying compliance with cl 7 with respect for these works. Having considered the advice of the parties mindful of the various expert reports, I am satisfied with respect to SEPP 55 requirements.

13. Further, in regard to notification requirements and requirements for a consent authority to take into consideration any submissions made, I am advised that the DA was originally placed on notification between 28 August 2018 and 28 September 2018 and one public submission was received, which I have considered (its substance is detailed at p9 of the ASOFAC). I am advised the amended DA was advised and exhibited from 6 May 2020 to 30 June 2020. I have been advised that no submissions have been received. I am further advised that the amended DA was also referred to several external agencies and that no objections were received from the referral agencies.

14. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and 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. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. 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.

16. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

17. The Court orders:

1. The Applicant is granted leave to rely upon the following reports:

1. Detailed Contamination Site Investigation Report; Lot 54 1196583, 1070 Richmond Road, Marsden Park NSW (Geotesta Pty Ltd; NE083, December 31st, 2016)

2. Detailed Contamination Site Investigation Report; 234 Grange Avenue, Marsden Park NSW (Geotesta Pty Ltd; NE083, January 15th, 2017)

3. Detailed Contamination Site Investigation Report; 1036 Richmond Road, Marsden Park NSW (Geotesta Pty Ltd; NE083, January 17th, 2017)

4. Detailed Contamination Site Investigation Report; 230 Grange Avenue, Marsden Park NSW (Geotesta Pty Ltd; NE083, January 27th, 2017)

5. Detailed Contamination Site Investigation Report; 1060 Richmond Road, Marsden Park NSW (Geotesta Pty Ltd; NE083, January 27th, 2017)

6. Detailed Contamination Site Investigation Report; 1032 Richmond Road, Marsden Park NSW (Geotesta Pty Ltd; NE083, January 27th, 2017)

7. Detailed Contamination Site Investigation Report; 232 Grange Avenue, Marsden Park NSW (Geotesta Pty Ltd; NE153, June 19th, 2017)

8. Environmental Site Validation Report for Proposed Residential Development; 1032 Richmond Road, Marsden Park NSW (Geotesta Pty Ltd; NE153, November 1st, 2017)

9. Environmental Site Validation Report for Proposed Residential Development; 1036 Richmond Road, Marsden Park NSW (Geotesta Pty Ltd; NE153, December 12th, 2017)

10. Environmental Site Validation Report for Proposed Residential Development; 1080 Richmond Road, Marsden Park NSW (Geotesta Pty Ltd; NE153-17, December 12th, 2017)

11. Contamination Site Investigation Report; 226-228 Grange Avenue, Marsden Park NSW 2765 (Geotesta Pty Ltd; NE388, October 12th, 2018)

12. Environmental Data Gap Assessment Report; 230 Grange Avenue, Marsden Park NSW (Geotesta Pty Ltd; NE153, August 2nd, 2019)

13. Preliminary Salinity and Geotechnical Assessment prepared by Martens Consulting Engineers (Report No. P150488JR05V01) dated December 2015.

2. The appeal is upheld.

3. Development Application No. DA-18-00159 is approved for the consolidation of Lot 5 DP1245610, Lot 6 DP1245610; Lot 11 DP1245610, Lot 7 DP1245610, Lot 60 DP1196729, Lot 8 DP 1245610, Lot 21 DP 1191512, Lot 20 DP 1191512, Lot 9 DP 1245610 and Lot 10 DP 1245610 into 13 Torrens Title lots (including 1 residue lot) to facilitate future residential development, associated subdivision works including public road construction, drainage works, dam dewatering and tree removal on the Lots identified above, subject to the conditions at Annexure A.

…………………………

P Walsh

Commissioner of the Court

Annexure A (395675, pdf)

Plans (1133321, pdf)

**********

Amendments

17 July 2020 - Correction to typographical error at [1].

Decision last updated: 17 July 2020