Urbanism Pty Limited v Blacktown City Council

[2022] NSWLEC 1187

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urbanism Pty Limited v Blacktown City Council [2022] NSWLEC 1187

Hearing dates:

Conciliation conference on 25 March 2022

Date of orders:

08 April 2022

Decision date:

08 April 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development Application No. 20-01944 seeking consent for the demolition of existing structures, vegetation removal and construction of a place of public worship and ancillary community centre with at-grade parking for 20 vehicles on the land at 44 Wealtheasy Street, Angus (Lot 44 DP 10319) is approved subject to the conditions of consent annexed hereto and marked “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 7.5

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 77

Land and Environment Court Act 1979, s 34

Local Land Services Act 2013, s 60O

Rural Fires Act 1997, s 100B

State Environmental Planning Policy No 55 - Remediation of Land, cl 7

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 8

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022)

NSW Rural Fire Service, Planning for Bush Fire Protection (November, 2019)

Category:

Principal judgment

Parties:

Urbanism Pty Limited (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
N Hamond (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Toomey Pegg Lawyers (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2021/189074

Publication restriction:

No

Judgment

1. COMMISSIONER: Urbanism Pty Limited (the Applicant) has appealed the refusal by Blacktown City Council (the Respondent) of its development application DA-20-01944, made with owner’s consent, seeking consent for demolition of existing structures and construction of a community centre and public place of worship with parking, originally for 22 vehicles, and now proposed for 20 vehicles (the Proposed Development) at 44 Wealtheasy Street, Angus (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. By notice of motion, the Applicant was granted leave by the Court on 21 February 2022 to rely on amended plans and other documents in the proceedings (the amended Proposed Development).

4. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Proposed Development was placed on public exhibition by the Respondent between 17 March to 31 March 2021, and one submission was received in response to that notification. The Applicant’s amended development application was not required to be notified by the Respondent.

5. On 25 March 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection was undertaken prior to the conciliation conference being convened, consistent with the Policy. No objectors sought to make submissions during the site view.

7. At the conciliation conference, undertaken via Microsoft Teams, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

8. Under s 34(3) of the Land and Environment Court Act 1979 (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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of s 4.14 of the EP&A Act, concerning consultation and development consent for certain bush fire prone land, the Parties have advised, and I am satisfied, that:

1. a bush fire safety authority is not required under s 100B of the Rural Fires Act 1997 because the Proposed Development is not for a “special fire protection purpose” (SFPP) as defined in s 100B(6) (and contrary to Council’s statement at paragraph 21 of its amended statement of facts and contentions (ASOFC);

2. pursuant to section 8.3.11 of ‘Planning for Bush Fire Protection 2019’, the Respondent provided the Applicant’s amended development application to the NSW Rural Fire Service (RFS) on 18 February 2022;

3. a response was received from the RFS on 7 March 2022, which included detailed conditions of consent, which have been incorporated into the Parties agreed conditions, and which the Parties agree are consistent with the Proposed Development, as amended, such that compliance is achieved;

2. in relation to the provisions of the former cl 7(1)(a) of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP55), now repealed but incorporated within cl 4.6(1) of the recently commenced State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP), the consent authority is required to consider whether the land is contaminated. The Parties advise, and I am satisfied, that consideration has been given as to whether the Subject Site is contaminated, and that:

1. the Applicant has provided a Detailed Site Investigation undertaken on the Subject Site, which has identified that the Subject Site contains contaminated land;

2. the Parties have included agreed conditions of consent requiring the preparation of a remediation action plan for the Subject Site reflecting the recommendations of the Applicant’s Detailed Site Investigation; and

3. the Subject Site is suitable for the purpose for which the development is proposed to be carried out in fulfilment of the provisions of cl 4.6 of the Resilience SEPP (formerly cl 7 of SEPP55);

3. the provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP Vegetation) do not apply to the Proposed Development by operation of cl 8(1) of SEPP Vegetation and s 60O of the Local Land Services Act 2013 as the removal of proposed trees will be authorised by the approval of the DA. Notwithstanding that SEPP Vegetation does not apply, the DA meets the aims of the SEPP Vegetation.

4. in relation to the provisions of the Blacktown Local Environmental Plan 2015 (BLEP), the Parties have advised, and I am satisfied that:

1. the Subject Site is located within the RU4 Primary Production Small Lots zone under cl 2.3 of BLEP and development for the purposes of community facilities and a place of public worship are permitted with consent in that zone;

2. there is no maximum height of buildings nor a maximum floor space ratio applicable to development on the Subject Site pursuant to cll 4.3 and 4.4 of BLEP; and

3. clause 7.5 of BLEP relating to “essential services” is satisfied in respect of each of the matters listed in that clause, and the agreement reached by, and recommendations of, the Parties’ engineering experts in relation to the supply of water to the proposed Development, as amended, have been incorporated into the Parties’ agreed conditions of consent;

5. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submission of the one objector which is a relevant consideration under s 4.15(1)(d) of the EP&A Act. The Parties agree that the submission of objector has been considered by them and the Proposed Development, as amended, can be approved.

10. Having considered the advice of the Parties, provided above at [9], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

11. Further, 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.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required 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 the issues that were originally in dispute between the Parties.

Orders

14. The Court orders that:

1. The Appeal is upheld;

2. Development Application No. 20-01944 seeking consent for the demolition of existing structures, vegetation removal and construction of a place of public worship and ancillary community centre with at-grade parking for 20 vehicles on the land at 44 Wealtheasy Street, Angus (Lot 44 DP 10319) is approved subject to the conditions of consent annexed hereto and marked “A”.

………………………..

M Chilcott

Commissioner of the Court

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Annexure A.pdf

Decision last updated: 08 April 2022