Universal Property Group Pty Limited v Blacktown City Council

[2019] NSWLEC 1304

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Universal Property Group Pty Limited v Blacktown City Council [2019] NSWLEC 1304
Hearing dates:	Conciliation conference on 31 May 2019
Date of orders:	28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [11] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 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: M Staunton (Applicant)   Solicitors: Swaab (Applicant) L Raffaele, Bartier Perry (Respondents)
File Number(s):	2018/324005
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 Blacktown City Council's deemed refusal of development application DA-18-01783 (‘DA’).

2. Pursuant to the parties' s34 Agreement, the Applicant seeks leave to rely on amended plans and material. Under the DA as amended, the Applicant seeks consent for the subdivision of three allotments into 91 Torrens Title lots, the removal of trees, the erection of 28 multi dwelling housing dwellings on proposed Lot 92, construction of roads and stormwater drainage work at Lot 2 DP 846728 and Lots 4 and 5 DP 837354 known as 125, 129 and 137 Burdekin Road, Quakers Hill (the Site).

Conciliation and agreement between the parties

3. 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 31 May 2019. After the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

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

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.

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. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, I note the following:

• I accept the advice of the parties that the application has been properly made, that it is permissible and does not breach any development standards contained in Appendix 4 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP GC).

• Having regard to cl 6.1(1) of Appendix 4 SEPP GC, based on the advice of the parties as to its status, I am satisfied that any 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 required.

• Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), consideration has been given as to whether the subject site is contaminated. I am advised that the Applicant commissioned a Contamination Site Investigation Report prepared by Geotesta Pty Ltd on 5 July 2018. Based on Council’s view that the requirements of cl 7 of SEPP 55 are satisfied having considered this report, I am also satisfied in this regard.

7. 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.

8. 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.

9. 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.

10. 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.

11. The Court orders:

1. The Applicant is granted leave to amend its development application to:

1. rely upon the following plans:

Drawing No. and Revision/Issue	Title	Prepared by	Date
Architectural Plans
DA00, Rev 3	Cover Page	The Bathla Group The Bathla Group	3 June 2019
DA01, Rev 3	Site Analysis		3 June 2019
DA02, Rev 3	Subdivision Plan		3 June 2019
DA03, Rev 3	Building Envelope Plan		3 June 2019
DA04, Rev 3	Site Plan (Townhouse)		3 June 2019
DA05, Rev 3	Ground Floor Plan (Townhouse)		3 June 2019
DA06, Rev 3	First Floor Plan (Townhouse)		3 June 2019
DA07, Rev 3	Elevation & Section		3 June 2019
DA08, Rev 3	Shadow Analysis – June 21st		3 June 2019
Drawing CS-1	Site Plan - Colour Schedule		May 2019
Issue B	Colour Schedule		17 May 2019
	Colour Schemes		17 May 2019
DA-09, Rev 1	Shadow Analysis		15 May 2019
Landscaping plan
LP01/01, Rev 03	Landscape Plan	The Bathla Group	3 June 2019
Engineering Plans
000, Rev 02	Cover Sheet	Orion Consulting Engineers	Undated
001, Rev 02	General Layout Plan, Notes & Legend		27 May 2019
002, Rev 02	Demolition & Tree Removal Plan
003, Rev 02	Site Regrading Plan
004, Rev 02	Site Sections Sheet 01 of 03
005, Rev 02	Site Sections Sheet 02 of 03
006, Rev 02	Site Sections Sheet 03 of 03
100, Rev 02	Sediment and Erosion Control Plan
101, Rev 02	Sediment Control Details & Notes
200, Rev 02	Engineering Plan
201, Rev 02	Finished Floor Level Plan – Torrens Titled Lots
202, Rev 02	Finished Floor Level Plan – Strata Titled Lots
300, Rev 02	Road Long Section Sheet 01 of 03
301, Rev 02	Road Long Section Sheet 02 of 03
302, Rev 02	Road Long Section Sheet 03 of 03
303, Rev 02	Turnpath Plan
400, Rev 02	Temporary Basin Catchment Plan
401, Rev 02	External Catchment Plan
402, Rev 02	Drainage Long Section Sheet 01 of 04
403, Rev 02	Drainage Long Section Sheet 02 of 04
403A, Rev 02	Drainage Long Section Sheet 03 of 04
403B, Rev 02	Drainage Long Section Sheet 04 of 04
404, Rev 02	Temporary Basin No.1 Plan & Details

2. rely on the following material:

Document Title	Prepared by	Date
Statement of Environmental Effects	Universal Property Group	June 2019
Waste Management Plan	Universal Property Group	May 2019

2. The Applicant is to pay the Respondent's costs as agreed or assessed arising under s 8.15(3) of the Environment Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Consent is granted to DA-18- 01783 for the subdivision of three allotments into 88 Torrens title lots and 4 residue lots including site works, roads, stormwater drainage and the removal of trees, and the erection of 28 multi dwelling housing dwellings on proposed Lot 92, construction of roads and stormwater drainage work at Lot 2 DP 846728 and Lots 4 and 5 DP 837354 known as 125, 129 and 137 Burdekin Road, Quakers Hill, in accordance with the conditions set out in Annexure 'A'.

…………………………

P Walsh

Commissioner of the Court

Annexure A (225 KB, pdf)

Selected Plans (4.38 MB, pdf)

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Amendments

04 July 2019 - Selected Plans Uploaded to Judgment

Decision last updated: 04 July 2019