Universal Property Group Pty Ltd v Penrith City Council

[2017] NSWLEC 1746

Land and Environment Court

New South Wales

Medium Neutral Citation:	Universal Property Group Pty Ltd v Penrith City Council [2017] NSWLEC 1746
Hearing dates:	Conciliation conference on 18 & 24 October, 4 & 8 December 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Class 1
Before:	Bish 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) Penrith City Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicant) Solicitors: SWAAB Attorneys (Applicant) Mr Campbell, Penrith City Council (Respondent)
File Number(s):	2017/173680
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 material:

Stormwater Management Strategy, South Werrington Urban Village Precinct, Revision 8 dated 30 November 2017

2. The appeal is upheld in part.

3. Approval is granted to Application No. D14/0627.02 pursuant section 96(2) of the Environmental Planning and Assessment Act 1979 to amend condition 32 of Development Consent No. DA-14-0627 to read as follows:

"An Engineering Construction Certificate for the provision of engineering works (roads and drainage) is to be approved by the certifying authority. A Construction Certificate shall be issued for any subdivision works.

Prior to the issue of any Construction Certificate, the Certifying Authority shall ensure that engineering plans are consistent with the stamped approved concept plans prepared by Universal Property Group, reference number DA02/02, Revision R01, dated 13/01/2016, along with Stormwater Management Strategy prepared by Aurecon, reference number 241636, revision 8 dated 30 November 2017, and that all subdivision works have been designed in accordance with the development consent, Penrith City Council's Design Guidelines for Engineering Works for Subdivisions and Developments, Engineering Construction Specification for Civil Works, Austroads Guidelines and best engineering practice.

The Construction Certificate shall also include the following amendments -

Velocity Depth ratios shall not exceed 0.4 for 1 in 100 year storm event;

All local road drainage systems shall be designed for the 1 in 10 year storm event as required by item 3.3.1 of Council's engineering design guidelines, with the pipe in road 4 designed as trunk drainage which can accommodate a 1 in 20 year storm event;

A cycleway/pedestrian pram ramp shall be provided within road (north side of Road 5 intersection) opposite Lot 36;

All bicycle path construction is to be in accordance with the relevant requirements of Section 7 "Austroads Cycling Aspects of Austroads Guides" and Roads and Maritime Services "Bicycle Guidelines" including line marking, signage and logos;

All driveway locations shall coincide with the DA approved Subdivision - Building Envelope Plan prepared by Universal Property Group.

All pram ramps shall be provided at kerb returns in accordance with Council's standard detail - SD1002. The designer shall ensure that the stormwater gully pit lintels are at least 1.0m clear of the pram ramps.

Inter-allotment drainage easements and widths shall be shown on all plans (including the Building Envelope Plan) ensuring that the widths are in accordance with Penrith City Council's Design Guidelines for Engineering works for Subdivision and Developments - 3.11 Drainage Easements;

The indicative subdivision, road and drainage details for 25 Rance Road, Werrington shall be updated and coincide with the Court approved plans;

All batters shall be graded at a maximum 1:5 with a 0.5m berm from the property boundary;

AII steel reinforced concrete pipes shall conform to AS4058 (2007) for classes 2, 3 and 4. All pipe road crossings shall be a minimum class 4.

Road drainage pits exceeding 1.5m deep shall be steel reinforced concrete to Structural Engineers details. Structural design certifications from a suitably qualified structural engineer shall be provided in support of the details;

The 1% AEP flood extent shall be shown on the general arrangement plans;

Set down RL's (Finished Terrace Levels - FTL) for the building/benched platforms shall be deleted from the plans;

Details of rip rap drainage measures on 0016 shall be provided;

Detailed design of the sediment basin staging/sequencing to be provided on the plans and generally coincide with the Stormwater Management Strategy - revision 8.

Relocation of pits A3.1 and A3 and pipe crossing within Road 4 to be located towards Road 3 intersection tangent point;

Lots 43-46, 75-78 should be able to discharge stormwater directly to the kerb. In this regard, inter-allotment drainage may not be needed for these lots.

The subdivision works may include but are not limited to the following:

Public and private roads

Storm water management (quantity and quality)

Interallotment drainage

Private access driveways

Sediment and erosion control measures

Flood control measures

Overland flow paths

Traffic facilities

Earthworks

Bridges, culverts, retaining walls and other structures

Landscaping and embellishment works

The Construction Certificate must be supported by engineering plans, calculations, specifications and any certification relied upon.

Note:

Council's Development Engineering Department can provide this service. Contact Penrith City Council's Development Engineering Department on [phone] or visit Penrith City Council's website for more information."

4. Approval is granted pursuant section 96(2) of the Environmental Planning and Assessment Act 1979 to amend condition 59 of Development Consent No. DA-14-0627 to read as follows:

“Prior to the issue of a Construction Certificate, the following information is to be submitted to Council for review and approval:

Council should be given an opportunity to review and approve the proposed Rocla CDS 2028 GPT which is proposed to be installed so that considerations of operation and maintenance requirements can be made. The proponent should provide Council with a detailed operation and maintenance manual which includes estimated costing

Detailed construction plans including all calculations, drawings and designs which are consistent with the design parameters used in the modelling and approved concept designs from the Development Application

A Detailed Staging Plan for the construction and establishment of the bioretention system, which clearly outlines when the basin will be built and how it will be protected from sedimentation during the construction of other stages the bioretention system serves.”

……………………….

Commissioner Bish

Annexure A (C)

Annexure B

Decision last updated: 28 December 2017