Universal Property Group Pty Ltd v Camden Council

[2020] NSWLEC 1455

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Camden Council [2020] NSWLEC 1455

Hearing dates:

Conciliation conference on 13 August and 10 September 2020

Date of orders:

29 September 2020

Decision date:

29 September 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

See orders at [19] below.

Catchwords:

DEVELOPMENT APPLICATION – remediation of land – subdivision – biodiversity in non-rural areas – conciliation conference – agreement between the parties – orders

Legislation Cited:

Camden Local Environmental Plan 2010

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River (No 2—1997)

Texts Cited:

Camden Development Control Plan 2011

Category:

Principal judgment

Parties:

Universal Property Group Pty Ltd (Applicant)
Camden Council (Respondent)

Representation:

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

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

File Number(s):

2019/401281

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 2018/1238/1 by Camden Council (hereafter the Council), which as amended seeks the remediation of contaminated land, demolition of existing structures, tree removal, and subdivision to create 23 lots with road construction, drainage and associated site works, on Lot 31 in DP 826724, also known as 93A Holdsworth Drive, Narellan Vale (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was initially held on 13 August 2020, then adjourned to allow the applicant to provide relevant information to support this agreement. I presided over the conciliation conference. There were no objectors whom spoke at this conciliation.

4. During this conciliation conference, and following expert discussion, the applicant sought to amend the plans and supporting documents to the DA, specifically related to the subdivision layout and engineering. Leave is granted by the Court to amend the DA under appeal, which is unopposed by the respondent.

5. Based on these amended plans and documents, together with the DA’s initial supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision of the parties is to uphold the appeal and grant consent to DA 2018/1238/1 with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 2018/1238/1 with plans and conditions, as described in Annexures A and B, respectively.

7. The parties identified the jurisdictional prerequisites of particular relevance to the Court to be satisfied to grant consent in these proceedings, pursuant to the requirements of s 4.15 of the EPA Act, as consistency with the: Environmental Planning and Assessment Regulation 2000 (EPA Reg); Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River (No 2—1997) (SREP 20); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); and Camden Local Environmental Plan 2010 (CLEP). In addition, the Camden Development Control Plan 2011 (CDCP) is of consideration to grant consent to the DA.

8. The Council has granted owner’s consent to the lodgement of the application for development consent, as the development seeks work on land known as on Lot 2095 DP828307, which is owned by Council and that will form a drainage reserve. Therefore, the parties agree that the requirements of cl 49(1)(b) of the EPA Reg are addressed. Further to this, a condition of consent that requires the applicant to enter into a deed of access prior to the commencement of the works is agreed between the parties.

9. The requirements of the SREP 20 are required for consideration, and specifically, cll 5, 6 and 8 as contended. The parties are satisfied that the amendments made to the DA and conditions of consent address the issues relating to water quality and quantity, which resolve the relevant contentions and satisfy the requirements of the SREP 20.

10. In compliance with the requirements of SEPP 55, the DA is supported by a contamination site investigation report, remediation action plan (RAP) and conditions of consent. The parties have advised that the Court can be satisfied that the proposed development complies with cl 7, because the recommendations of the contamination site investigation report are adequately addressed in the conditions of consent and the RAP.

11. Due to the site’s proximity to an easement for electricity purposes, the requirements of cl 45 of the SEPP Infrastructure require consideration to grant consent to the DA under appeal. In satisfaction of these requirements, the DA was referred to Endeavour Energy, whom raised no objection to the DA under appeal.

12. The site is located within the R2 Low Density Residential Zone, as described in the CLEP. The proposed development is permissible in the zone. The parties agree that the relevant provisions of the CLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The parties agree that the objectives of the zone are satisfied.

13. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the CDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential amenity impacts that would warrant refusal of the DA.

14. The parties agree that the requirements of the CDCP are complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the CDCP. During the initial notification period, five submissions were received by Council, which have been considered by the parties before making this agreement.

15. The parties advise the Court that they have undertaken a merit assessment of the amended plans and supporting documents to the DA that resolve all the contentions and relevant issues raised by objectors.

16. Therefore, based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties.

17. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2018/1238/1 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

18. 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.

19. The Court orders that:

1. The Applicant is granted leave to rely upon the following amended material attached at Annexure A:

Drawing No and Revision	Title	Date
Subdivision Plans prepared by The Bathla Group
Drawing No SK02/04 Rev 1	Envelope Plan	26/8/2020
Drawing No SK01/03 Rev 2	Subdivision Plan	26/8/2020
Engineering Plans and Documents prepared by BG&E
Memorandum, Project No. S18194*01	93A Holdsworth Drive Updated Flood Modelling Results	2 September 2020
DRAINS MODEL S18194
Drawing No DA-0000 Revision F	Cover Sheet and Drawing Index	28 August 2020
Drawing No DA-0020 Revision F	Existing Features and Demolition Plan	28 August 2020
Drawing No DA- 0100 Revision F	Earthworks Plan	28 August 2020
Drawing No DA-0110 Revision F	Earthworks Sections	28 August 2020
Drawing No DA-0111 Revision C	Drainage Channel Sections	28 August 2020
Drawing No DA-0200 Revision F	Roadworks and Drainage Plan	28 August 2020
Drawing No DA-0210 Revision F	Roadworks Sections and Details	28 August 2020
Drawing No DA-0215 Revision F	Road Longitudinal Sections	28 August 2020
Drawing No DA-0350 Revision B	Plan and Sections for Overland Flow Depression and Typical OSD	28 August 2020
Drawing No DA-0700 Revision F	Erosion and Sediment Control Plan	28 August 2020
Drawing No DA-0710 Revision F	Erosion and Sediment Control Details	28 August 2020

2. The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $8,500.00.

3. The appeal is upheld.

4. Development Application No. 2018/1238/1, for the remediation of land, demolition of existing dwellings and structures, tree removal, subdivision to create 23 lots, road construction, drainage and associated works on Lot 31 DP826724, known as 93A Holdsworth Drive, Narellan Vale and Lot 2095 DP828307, is approved subject to the conditions at Annexure B.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (12239513, pdf)

Annexure B (259331, pdf)

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Decision last updated: 30 September 2020