Universal Property Group Pty Ltd v Blacktown City Council

[2018] NSWLEC 1514

Land and Environment Court

New South Wales

Medium Neutral Citation:	Universal Property Group Pty Ltd v Blacktown City Council [2018] NSWLEC 1514
Hearing dates:	Conciliation conference on 18 July 2018; 8 August 2018 and 5 September 2018
Date of orders:	26 September 2018
Decision date:	26 September 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	MODIFICATION APPLICATION – deferred commencement condition – application to change engineering specifications and conditions of deferred commencement - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: E Fleming, Solicitor (Applicant) L Mulligan, Solicitor (Respondent) Solicitors: Swaab Attorneys (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/144322
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an application by Universal Property Group Pty Ltd seeking to modify conditions of development consent JRPP 16-03321 granted by the Court on 6 June 2017 in proceedings no. 2016 / 278295. The Court granted consent was for subdivision of Lot 5 in DP 262886 into 8 lots (including 6 Residential Lots, 1 RE1 zoned Lot and 1 SP2 zoned Lot) including ancillary storm water and public domain landscaping works, demolition of existing structures and tree removal within and adjoining the proposed public roads, on land known as 312 South Street, Marsden Park. The application seeks to delete the deferred commencement conditions and change the hydraulic engineering specifications. Universal Property Group Pty Ltd appeals against a deemed refusal of that application by Blacktown City Council.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. 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.

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

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

1. include Lot 45 DP262886 and Lot 4 DP1202472; and

2. rely upon the following engineering plans contained at Annexure "A":

Drawing	Title	Date
Cover Sheet	Sheet Index, Locality Plan and Legend	29 September 2018
SY170117-DA-02 Revision D	Overall Site Plan and General Notes	29 September 2018
SY17117-DA-03 Revision D	Engineering Plan 1 of 8	29 September 2018
SY17117-DA-04 Revision D	Engineering Plan 2 of 8	29 September 2018
SY17117-DA-05 Revision D	Engineering Plan 3 of 8	29 September 2018
SY17117-DA-06 Revision D	Engineering Plan 4 of 8	29 September 2018
SY17117-DA-07 Revision D	Engineering Plan 5 of 8	29 September 2018
SY17117C08 Revision D	Engineering Plan 6 of 8	29 September 2018
SY17117-DA-09 Revision D	Engineering Plan 7 of 8	29 September 2018
SY170117-DA-10 Revision D	Engineering Plan 8 of 8	29 September 2018
SY170117-DA-11 Revision D	Earthworks Plan	29 September 2018
SY170117-DA-12 Revision D	Road Longitudinal Sections 1 of 3	29 September 2018
SY170117-DA-13 Revision D	Road Longitudinal Sections 2 of 3	29 September 2018
SY170117-DA-14 Revision D	Road Longitudinal Sections 3 of 3	29 September 2018
SY170117-DA-15 Revision D	Road No. 1 Cross Sections	29 September 2018
SY170117-DA-16 Revision D	Typical Road Cross Sections	29 September 2018
SY170117-DA-17 Revision D	Pre Development Catchment Plan	29 September 2018
SY170117-DA-18 Revision D	Water Quality and Onsite Detention Catchment Plan	29 September 2018
SY170117-DA-19 Revision D	Onsite Detention Basin 1 - Plan	29 September 2018
SY170117-DA-20 Revision D	Onsite Detention Basin 1 - Sections	29 September 2018
SY170117-DA-21 Revision D	Onsite Detention Basin 2 – Plan and Sections	29 September 2018
SY170117-DA-22 Revision D	Onsite Detention Basin 1 and 2 Details	29 September 2018
SY170117-DA-23 Revision D	Basin 1 and 2 Water Quality Outlets Details (Stage 1)	29 September 2018
SY170117-DA-24 Revision D	Basin 1 and 2 Water Quality Outlets Details (Stage 2)	29 September 2018
SY170117-DA-25 Revision D	Calculations Sheet 1	29 September 2018
SY170117-DA-26 Revision D	Calculations Sheet 2	29 September 2018

2. The Applicant is to pay the Respondent's costs in the sum of $3,500.

3. The appeal is upheld.

4. Development Consent DA JRPP-16-03321 (as amended) approved by the Land and Environment Court Approval (Proceedings No. 2016/278295) for the subdivision of Lot 50 DP 1234732 (formally Lot 5 in DP 262886) into 8 lots including stormwater works on Lot 50 in DP 1234732, Lot 45 DP262886 and Lot 4 DP1202472 and public domain landscaping works, demolition of existing structures and tree removal is modified in accordance with the modification of conditions as set out in Annexure B.

5. As a consequence of Order 2(d) above, Development Consent DA JRPP-16-03321 is now subject to the consolidated, modified conditions of consent set out in Annexure C.

……………………….

Commissioner Gray

Annexure A (16.5 MB, pdf)

Annexure B (178 KB, pdf)

Annexure C (584 KB, pdf)