Nicholas v Blacktown City Council [2020] NSWLEC 1271

Land and Environment Court New South Wales

Medium Neutral Citation: Nicholas v Blacktown City Council [2020] NSWLEC 1271 Hearing dates: Conciliation conference on 26 May 2020 Date of orders: 26 June 2020 Decision date: 26 June 2020 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [14] below Catchwords: DEVELOPMENT APPLICATION – subdivision into five Torrens title lots – conciliation conference – agreement between the parties – orders Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: Blacktown Development Control Plan 2015 Category: Principal judgment Parties: Najib Nicholas (Applicant) Blacktown City Council (Respondent) Representation: Counsel: P Saab (Solicitor) (Applicant) D Loether (Solicitor) (Respondent)

Solicitors: Macquarie Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 2019/302592 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 19-00280 by the Blacktown City Council (hereafter the Council) which seeks a five (5) Torrens title lot subdivision with associated essential services and drainage works on Lot 4 DP 1049979 and Lot 5 DP 1004516, also known as 9-11 Carter Street, Seven Hills (hereafter the site). 2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to the parties' request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held before me on 26 May 2020 in Court, and adjourned until 18 June 2020, at the request of the parties to file the agreement. There were no (resident) objectors at the conciliation. 4. Based on the amended plans, together with the DA's 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 parties agree that the contentions raised by Council have been considered and resolved, and that there were no submissions by objectors from previous notification/s of the DA. The decision of the parties is to uphold the appeal and grant consent to DA 19-00280 with conditions. 5. 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 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 19-00280, with conditions described in Annexure A. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court's consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55); and the Blacktown Local Environmental Plan 2015 (BLEP). 7. The proposed subdivision complies with the provisions of SEPP 55, as no contamination was identified on the site in the Stage 1 contamination study. In addition, as the site is located within close proximity to the rail corridor, the requirements of SEPP Infrastructure are relevant for consideration. The parties confirm that the conditions provided by Sydney Water in response to the proposed development have been included in full in the conditions of consent. Therefore, the requirements of SEPP Infrastructure are satisfied, specifically cl 85. 8. The proposed development is located within the R2 Low Density Residential Zone, as identified in the BLEP. The proposed subdivision is permissible in the zone and satisfies the objectives of the zone. The parties agree that the relevant provisions of the BLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The relevant contentions are resolved. 9. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed subdivision. 10. The parties agree that the DA was publicly notified, and renotified with the amended plans, in accordance with the Blacktown Development Control Plan 2015. During the notification period/s for this DA under appeal, no submissions in objection were received by Council. 11. The amended plans that relate to the proposed subdivision have been considered in the context of the site. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties. 12. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 19-00280 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 13. 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. 14. The Court orders that: 1. The applicant is granted leave to amend Development Application No. DA-19-00280 and to rely upon the following amended plans and documents: Plan Reference Drawing No. Prepared by: Revision and Date Subdivision Plan, - SDG Land Development Solutions Not dated Surveyors Ref: 7763 Subdivision Plan Overlay - SDG Land Development Solutions Not dated Surveyors Ref: 7763 Title Page, Notes and Details Drawing SW001 Mance Arraj Revision B, 21.01.2020 Stormwater Layout Drawing Ground Level SW010 Mance Arraj Revision I, 29.05.2020 Stormwater Layout Drawing Ground Level Cont'D SW011 Mance Arraj Revision H, 29.05.2020 Cut and Fill Drawing SW012 Mance Arraj Revision A, 29.05.2020 OSD Catchment Plan, OSD Basin 1 Section Detail SW020 Mance Arraj Revision E, 29.05.2020 Plan of OSD Tank 2, 3 & 4 and Section Details SW021 Mance Arraj Revision C, 29.05.2020 Interallotment Drainage Longsections SW030 Mance Arraj Revision D, 29.05.2020 Upstream Catchments Plan, Overland Flow Details and Calculations SW040 Mance Arraj Revision C, 29.05.2020 Plan of Proposed Retaining Wall Along Common Boundary of 7 Carter Street, Seven Hills SW050 Mance Arraj Revision B, 29.05.2020