Universal Property Group Pty Limited v Blacktown City Council

[2019] NSWLEC 1071

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Universal Property Group Pty Limited v Blacktown City Council [2019] NSWLEC 1071
Hearing dates:	Conciliation conference on 8 February 2018
Date of orders:	08 February 2019
Decision date:	08 February 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [15] below
Catchwords:	MODIFICATION 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 (Sydney Region Growth Centres) 2006
Category:	Principal judgment
Parties:	Universal Property Group Pty Limited (Applicant) Blacktown City Council (Respondent)
Representation:	Solicitors: A Johnson, Swaab (Applicant) L Raffaele, Bartier Perry (Respondent)
File Number(s):	2018/361313
Publication restriction:	No

Judgment

1. COMMISSIONER: The proceedings comprise a modification application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). For the particulars below I rely in part on documentation provided by the applicant, with consent of the respondent, during the conciliation conference.

2. The application seeks to modify development consent DA 16-04983 granted by the Court on 15 June 2017, giving effect to an agreement under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), in proceedings 2017/51022 in respect of land known as 30 South Street, Marsden Park and now legally described as Lot 30 DP1246320, and formerly described as Lot 30 DP262886 (site).

3. The site falls under the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The Court Consent approves the subdivision of the site resulting in a series of new lots of various sizes and for various land use types, with associated requirements for construction of public roads, storm water drainage works and tree removal.

4. The proposed modifications provide for 'Fulton Road', as one of the new roads within the subdivision, to be upgraded as a half width road. According to the parties, this is in accordance with the approved engineering plans and the relevant Indicative Layout Plan (which establish road networks and the like within Growth Centre precincts).

5. The Court arranged a conciliation conference between the parties under s 34(1) of the LEC Act, which was held on 8 February 2019. I presided over the conciliation conference.

6. At the conciliation conference, the parties evidenced agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving the application and modifying the pre-existing consent in accordance with agreed conditions.

7. 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. The parties advise there are no jurisdictional impediments to this occurring and I note in particular their advice in regard to the following.

8. The parties have explained the modifications to me and that they do not alter the substance of the development. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

9. The parties have also advised of compliance in regard to ss 4.55(2)(b) and 4.55(2)(c) of the EPA Act in regard to consultation with authorities and notification. I am satisfied in this regard, including that submissions made in regard to the application as a consequence of public notification were considered.

10. The parties have also advised that the proposed modifications do not alter the proposal’s compliance with the Growth Centres SEPP.

11. I have also considered the Court’s original granting of consent to DA 16-04983 in coming to this determination.

12. 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. As the parties’ decision is a decision that the Court could have so made, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

13. 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 issues which may have been in dispute between the parties.

14. 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.

15. The Court orders:

1. The application to modify Development Application No 16-04983 (granted by the Land and Environment Court on 15 June 2017 in proceedings 2017/51022 giving effect to an agreement under s34(3) of the Land and Environment Court Act 1979) under s 4.55(8) of the Environmental Planning and Assessment Act, 1979 is approved.

2. Development Consent DA16-04983 is modified in accordance with the modification of conditions set out in Annexure A.

3. As a consequence of Order (2) above, Development Consent DA16-04983 is now subject to the consolidated, modified conditions set out in Annexure B.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (71.0 KB, pdf)

Annexure B (331 KB, pdf)

Amendments

25 February 2019 - Correction to typographical error on Cover Sheet

Decision last updated: 25 February 2019