Land and Environment Court New South Wales Medium Neutral Citation: Newton Developments Pty Limited v Penrith City Council [2020] NSWLEC 1382 Hearing dates: Conciliation conference on 3 July 2020 Date of orders: 20 August 2020 Decision date: 20 August 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend the Development Application and rely upon the plans listed in Part B Condition 1 of the Conditions of Consent at Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $2,500 within 28 days of this agreement. (3) The appeal is upheld. (4) Development consent is granted to Development Application No. DA18/0315, for the demolition of existing structures and the construction of 12 x two storey townhouses with 25 car parking spaces, associated driveway and ancillary landscaping, fencing, stormwater and drainage works" subject to the conditions of consent annexed hereto and marked "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Newton Developments Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: F Berglund (Applicant) M Pearce (Solicitor) (Respondent) Solicitors: Joseph Grassi & Associates (Applicant) Penrith City Council (Respondent) File Number(s): 2020/114915 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the Council's refusal of Development Application No. DA19/0315 for demolition of existing structures and construction of 13 x two storey townhouses with 28 car parking spaces, associated driveway, and ancillary landscaping, fencing and stormwater and drainage works over two site being Lot 68 in DP 562334 (557m2) and Lot 69 in DP 562334 (1,765m2) and is known as 9-11 Gibson Avenue, Werrington (the site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 3 July 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed requires leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16 of the EPA Act. 4. I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent in Annexure A is a decision that the Court can make in the proper exercise of its functions for the following reasons: 1. The proposed development does not contravene any development standard in the Penrith Local Environmental Plan 2010 ("LEP") or any other applicable environmental planning instrument. 2. The deferred commencement conditions 1(a) and (b) that require within 2 years of the grant of development consent the registration of an easement for drainage over the adjoining property at Lots 5 & 6 DP 28248, known as 86 Reid Street, Werrington, with discharge of stormwater into Werrington Creek, and stormwater drainage works within Council's road reserve satisfy the requirements of cl 7.1 of the LEP. 3. The development application (as amended) was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. Therefore, the nominated principles of sustainable development have been considered in the BASIX Certificate and Architectural Plans as required by cl 7.4 of the LEP. 4. As the site is located in an existing and established urban area, I accept that the development will not affect, or be affected by, saline soils: cl 7.6 of the LEP. 5. The proposal will be connected to all required services including reticulated water supply and a wastewater system. The site is in an established urban area with an existing connection to all services including water, sewer and electricity. The need for public amenities and services has been met or will be met by development contributions levied as part of the conditions of consent: cl 7.7 of the LEP. 6. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to dispose of the proceedings in accord with the terms of the agreement. The Court orders that: 1. Leave is granted to the Applicant to amend the Development Application and rely upon the plans listed in Part B Condition 1 of the Conditions of Consent at Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $2,500 within 28 days of this agreement. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. DA18/0315, for the demolition of existing structures and the construction of 12 x two storey townhouses with 25 car parking spaces, associated driveway and ancillary landscaping, fencing, stormwater and drainage works" subject to the conditions of consent annexed hereto and marked "A". ……………………… S Dixon Senior Commissioner of the Court Annexure A (275428, 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: 21 August 2020