Wahbe v Blacktown City Council

[2024] NSWLEC 1380

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wahbe v Blacktown City Council [2024] NSWLEC 1380

Hearing dates:

Conciliation conference on 27 June 2024

Date of orders:

04 July 2024

Decision date:

04 July 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA-20-00198 is modified in the terms set out in Annexure A.

(3) Development Consent No. DA-20-00198, as modified by the Court, is set out in Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979,s 34

Cases Cited:

North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163

Texts Cited:

Blacktown City Council Community Engagement Strategy and Community Participation Plan 2022-2024, 26 October 2022

Category:

Principal judgment

Parties:

Lilian Wahbe (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
M Fozzard (Respondent)

Solicitors:
Centurion Lawyers (Applicant)
Bilias & Associate (Respondent)

File Number(s):

2023/183834

Publication restriction:

No

Judgment

1. COMMISSIONER: This judgment relates to an appeal brought by the applicant under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Blacktown City Council (Council) of modification application MOD-22-00452. MOD-22-00452 seeks to modify development application DA-20-00198 which was granted deferred commencement consent by Council for a health services facility and associated development at 22 Durham Street, Mount Druitt (site).

2. More particularly, MOD-22-00452 sought the deletion of DA-20-00198’s condition 1.1 which provided the particulars of the deferred commencement consent. Condition 1.1 would require the provision of inter-allotment stormwater drainage and an associated stormwater management easement across a number of adjacent parcels of land. MOD-22-00452 proposes an alternative stormwater management solution involving stormwater outflows from the site draining to Nelson Street, which forms the site’s eastern boundary, and the construction of stormwater infrastructure within the road, in the common fashion involving stormwater pits and piping towards existing higher order infrastructure. There are some incidental civil engineering related implications which could be attended to through variations in the particulars of the consent conditions.

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 June 2024. Prior to the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting consent to MOD-22-00452 with associated modifications to conditions in DA-20-00198. Here I note that on 13 May 2024, the Court granted leave to the applicant to amend DA-20-0019, including in relation to detailed engineering drawings, to assist in the resolution of proceedings.

5. Under s 34(3) of the 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.

6. The parties’ decision involves the Court exercising the function under s 4.55(1A) of the EPA Act to modify DA-17-02747D. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties’ sought to assist here by providing the Court an agreed “jurisdictional statement” with respect to the assessment of MOD-22-00452, dealing with the particulars of why the parties believe the decision is one that the court can make in the proper exercise of its function. Assisted by this advice, I find that I agree with the parties that this decision is open for the court to make. The reasoning for this finding is outlined in the next section.

Jurisdiction

Section 4.55(1A) of the EPA Act

7. Having direct regard to the provisions of s 4.55(1A) of the EPA Act, I can readily find that I agree with the parties’ jurisdictional statement and I am satisfied in regard to each of the following matters.

Proposed modification is of minimal environmental impact

8. The parties agree that the proposed changes to stormwater management have minimal environmental impact and instead improve the stormwater management infrastructure in the immediate area. They advise that the provision of additional pits will generally improve stormwater surface flows in the vicinity. The requirements to impose easements across private land is also no longer required. I accept this advice. The proposed modification is of minimal environmental impact for these reasons.

Development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)

9. The modification proposes amendments to adjust the stormwater strategy and design for the proposed development. The proposal remains as a development for a medical centre with the original profile of use unchanged, and the development footprint unchanged. The modified development would be substantially the same development as that originally approved with DA-20-00198.

Notification

10. Council advises that, under its notification requirements, there is no necessity to notify MOD-22-00452, as the modification proposed was of minimal environmental impact. There are no submissions to consider in this instance.

Section 4.55(3) of the EPA Act

11. Mindful of s 4.55(3) of the EPA Act, the parties advise of the consideration of relevant matters under s 4.15(1) of the EPA Act. In particular, the parties advise in the jurisdictional statement (par 18) that MOD-22-00452 is “not inconsistent with any jurisdictional provisions in Blacktown Local Environmental Plan [2015] or any of the State Environmental Planning Policies”. This indicates to me that the parties have given consideration to these instruments. However, I am also aware that, mindful of North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (481 D) and subsequent decisions, there is no requirement for a jurisdictional finding of the Court in regard to such provisions when considering the evaluative criteria for modification applications.

12. I further note in regard to s 4.55(3) of the EPA Act, that there were no reasons nominated in the original consent as to why this decision was made. But the parties have provided me with a copy of the assessment report for the original consent which I have had regard to. There has been due consideration to the reasons given by the consent authority for the grant of the consent that is sought to be modified.

Conclusion and Orders

13. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and 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. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. 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.

15. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b) of the LEC Act). The final orders have this effect.

Orders

16. The Court orders:

1. The appeal is upheld.

2. Development Consent No. DA-20-00198 is modified in the terms set out in Annexure A.

3. Development Consent No. DA-20-00198, as modified by the Court, is set out in Annexure B.

P Walsh

Commissioner of the Court

183834.23 Annexure A

183834.23 Annexure B

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Decision last updated: 04 July 2024