Land and Environment Court New South Wales Medium Neutral Citation: Sinn v Blacktown City Council [2020] NSWLEC 1257 Hearing dates: 9-10 June 2020, Conciliation conference on 10 June 2020 Date of orders: 10 June 2020 Decision date: 10 June 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application no. DA-19-00796 for demolition of existing structures, tree removal, subdivision into 85 Torrens Title lots (84 residential lots and 1 residue lot) and associated earthworks including construction of retaining walls, new roads, stormwater drainage works and landscaping at 9 Glengarrie Road, Marsden Park is approved subject to the conditions contained at Annexure "A". Catchwords: DEVELOPMENT APPEAL – subdivision of land – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environmental Court Act 1979 National Parks and Wildlife Act 1974 State Environmental Planning Policy (Infrastructure) State Environmental Planning Policy No 55— Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Category: Principal judgment Parties: John Sinn (Applicant) Blacktown City Council (Respondent) Representation: Counsel: T To (Applicant) S Shneider (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Houston Dearn O'Connor (Respondent) File Number(s): 2019/393279 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council (the Respondent) of Development Application DA-19-00796 seeking consent for the subdivision into 85 Torren title lots and associated earthworks including construction of retaining walls, new roads, stormwater drainage works and landscaping at 9 Glengarrie Road, Marsden Park, otherwise known as Lot 44 in DP 262886 (the site). 2. The background facts and contentions of the matter as identified by the Applicant are contained in the Amended Statement of Facts and Contentions, filed with the Court on 23 April 2020. 3. Prior to the hearing, the Applicant was granted leave on 21 February 2020, 1 April 2020 and 5 June 2020 to amend the application and rely upon amended plans and other documents, the result of which the parties agree substantially resolves the matters in contention. 4. At the commencement of the hearing, the parties advised me that as the experts had agreed all matters in contention, the dispute had been narrowed to the proposed conditions of consent that had been provided by the Respondent to the Applicant immediately prior to the commencement of the hearing. 5. By consent the parties sought, and I granted, an adjournment in order to settle the final terms of the proposed conditions. At the commencement of the second day of the hearing, the parties advised me that the parties had reached an agreement and sought the matter be listed for conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). 6. The matter was reallocated to me under s 34(1) of the LEC Act for a conciliation conference between the parties and so I presided over the conciliation conference. 7. At the conciliation conference, 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 development consent to the development application subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 10 June 2020. 9. The parties ask me to approve their decision as set out in the s34 agreement before the Court. 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. 10. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [14]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons: 1. The site is zoned part R2 Low Density Residential, part E2 Environmental Conservation and part SP2 Local Drainage under Schedule 5 Marsden Park Industrial Precinct Plan of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), and the proposed development may be summarised as follows: * The proposed subdivision works are limited to the R2 Low Density Residential zoned area and are permissible with consent on the area of the subject site on which they are proposed. * The works proposed within the SP2 Local Drainage zoned land are limited to drainage infrastructure and are therefore permissible with consent on the area of the subject site on which they are proposed. * The environmental conservation works detailed in the Vegetation Management Plan prepared by GIS Environmental Consultants, which is registered on the title of the Site, are limited to the E2 Environmental Conservation zoned area and are permissible with consent on the area of the subject site on which they are proposed. 1. Clause 4.1AA of the Growth Centres SEPP provides that the subdivision of land in an R2 zone must demonstrate a sufficient building envelope to enable the erection of a dwelling house on each of the lots the result of the development that are less than 300m2 in area (but not less than 250m2). On the basis of Drawing No. DA-0-216 (Revision L dated 03/06/2020), I am satisfied that the proposed Lot sizes are consistent with this provision. 2. An Aboriginal Heritage Impact Permit (AHIP) pursuant to s 90 of the National Parks and Wildlife Act 1974 is required in order to carry out works on the site. The Applicant has prepared an Aboriginal Cultural Heritage Assessment Report (ACHAR) that has been provided to the Department of Planning, Industry and Environment (the Department) for assessment, and in respect of which the Department has issued General Terms of Approval (GTAs). The GTAs require that an AHIP be obtained prior to works commencing on the site, and I am satisfied that the conditions of consent provide for the obtaining of an AHIP prior to the issue of any Construction Certificate. 3. On the basis of the Detailed Site Investigation undertaken by Alliance Geotechnical dated 20 May 2020 and the Remediation Action Plan prepared by Alliance Geotechnical dated 27 May 2020, I am satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out, pursuant to Clause 7(1) of State Environmental Planning Policy No 55— Remediation of Land, and as provided for in the conditions of consent at Annexure 'A'. 1. As the jurisdictional prerequisites to the grant of consent have been addressed 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The appeal is upheld. 2. Development Application no. DA-19-00796 for demolition of existing structures, tree removal, subdivision into 85 Torrens Title lots (84 residential lots and 1 residue lot) and associated earthworks including construction of retaining walls, new roads, stormwater drainage works and landscaping at 9 Glengarrie Road, Marsden Park is approved subject to the conditions contained at Annexure "A". ………………………. Tim Horton Commissioner of the Court Annexure A (460435, pdf) Plans (5178766, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2020