Universal Property Group Pty Ltd v Blacktown City Council

[2017] NSWLEC 1394

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Universal Property Group Pty Ltd v Blacktown City Council [2017] NSWLEC 1394
Hearing dates:	Conciliation conference on 16 June, 3, 12, 21 July 2017
Date of orders:	21 July 2017
Decision date:	21 July 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION - 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:	Solicitor: Ms E Fleming, SWAAB Attorneys (Applicant) Mr D Loether, Bartier Perry(Respondent)
File Number(s):	2017/51115
Publication restriction:	No

Judgment

1. COMMISSIONER: 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”.

2. 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.

3. 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.

4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

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

Drawing Title	Drawing Number	Prepared by	Date
Site Plan	DA02 Rev D	The Bathla Group	19/05/2017
Ground Floor Plan Part 1	DA03 Rev D	The Bathla Group	19/05/2017
Ground Floor Plan Part 2	DA04 Rev D	The Bathla Group	19/05/2017
Ground Floor Plan Part 3	DA05 Rev D	The Bathla Group	19/05/2017
Ground Floor Plan Part 4	DA06 Rev D	The Bathla Group	19/05/2017
First Floor Plan Part 1	DA07 Rev D	The Bathla Group	19/05/2017
First Floor Plan Part 2	DA08 Rev D	The Bathla Group	19/05/2017
First Floor Plan Part 3	DA09 Rev D	The Bathla Group	19/05/2017
First Floor Plan Part 4	DA10 Rev D	The Bathla Group	19/05/2017
Elevations-1	DA11 Rev D	The Bathla Group	19/05/2017
Elevations-2	DA12 Rev D	The Bathla Group	19/05/2017
Elevations-3 and Sections	DA13 Rev D	The Bathla Group	19/05/2017
Shadow Analysis-1	DA14 Rev D	The Bathla Group	19/05/2017
Shadow Analysis-2	DA15 Rev D	The Bathla Group	19/05/2017
Concept Landscape Plan	LP 01/02 Issue R03	Universal Property Group	21/06/2017
Concept Landscape Plan	LP 02/02 Issue R03	Universal Property Group	21/06/2017
General Layout Plan Notes & Legend	16-24 ID 001 Rev D	Orion Consulting Engineers	03/07/17
Site Regrading Plan	16-24 ID 003 Rev D	Orion Consulting Engineers	03/07/17
Sediment & Erosion Control Plan	16-24 ID 010 Rev D	Orion Consulting Engineers	03/07/17
Sediment & Erosion Control Notes and Details	16-24 ID 011 Rev D	Orion Consulting Engineers	03/07/17
Retaining wall & Pad Plan – Sheet 01 of 03	16-24 ID 016 Rev D	Orion Consulting Engineers	03/07/17
Retaining wall & Pad Plan – Sheet 02 of 03	16-24 ID 017 Rev D	Orion Consulting Engineers	03/07/17
Retaining wall & Pad Plan – Sheet 03 of 03	16-24 ID 018 Rev D	Orion Consulting Engineers	03/07/17

2. The applicant is to pay the Respondent's costs as agreed or assessed under s.97B of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. JRPP 16-03345, subject to the conditions at Annexure A, for the construction of 123 dwellings, the construction of roads and drainage works, communal open space and landscaping works on proposed Lots 1 and 2 in the approved subdivision (Development Consent No. DA-16-04804) of Lot 1B DP361935, Lot 3 DP579020 and Lot 2A DP354435 (No. 133 and 137 Kensington Park Road, Riverstone and No. 84 Cranbourne Street, Riverstone).

Addendum made on 19 July 2018

5. On 5 July 2018, the applicant made an application to amend the orders made on 21 July 2017. That application is made pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, which allows a correction of a “clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order.”

6. The application is made with the consent of the Council, and is made as a result of an inconsistency between condition 3.3.2 and condition 7.1.1 of the conditions of development consent, which formed Annexure A to the orders.

7. Whilst the intent of Condition 3.3.2 and Condition 7.1 is the same, condition 7.1 imposes a more onerous requirement to obtain a Site Audit Statement ("SAS") in circumstances where the site has already been remediated and a final validation report prepared in satisfaction of condition 3.3.2.

8. I am satisfied that this is an accidental slip that can be amended pursuant to the slip rule. Accordingly I make orders in chambers as follows:

1. Pursuant to UCPR 36.17, the orders made on 21 July 2017 are amended such that condition 7.1 of Annexure A now states as follows:

“7.1 Environmental Management

7.1.1 All areas potentially / contaminated shall be remediated prior to the commencement of civil/site works in accordance with condition 3.3.2. Upon completion of remediation an appropriately qualified environmental consultant shall prepare a validation report for Council's approval prior to the release of the Subdivision Certificate. The validation report shall be carried out in accordance with:

• NSW Environment Protection Authority’s Guidelines for Consultants Reporting on Contaminated Sites (1997)

• NSW Environment Protection Authority’s Contaminated Sites Sampling Design Guidelines (1995).

• Australian and New Zealand Environment and Conservation Council and National Health and Medical Research Council’s Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites (1992)”

……………………….

Commissioner Gray

Annexure A Amended 19.7.2018 (288 KB, pdf)

51115.17 Gray - Kensigton park Rd 137 Riverstone-ISSUE D (19.8 MB, pdf)

Amendments

19 July 2018 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties Annexure A is amended.

Decision last updated: 19 July 2018