Land and Environment Court New South Wales Medium Neutral Citation: Malcolm Smith Pty Ltd v Blacktown City Council [2020] NSWLEC 1489 Hearing dates: Conciliation conference on 6 October 2020 Date of orders: 15 October 2020 Decision date: 15 October 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: Refer to orders at [13] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Texts Cited: Blacktown City Council Growth Centres Precincts Development Control Plan 2010 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020) Category: Principal judgment Parties: Malcolm Smith Pty Ltd (First Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Reid (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Robilliard Lawyers (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2020/43315 Publication restriction: No Judgment 1. COMMISSIONER: Malcolm Smith Pty Ltd (the Applicant) has appealed the refusal by the Blacktown City Council (the Respondent) of its development application DA-19-01887 seeking approval for Torrens title subdivision of land, including a first stage subdivision of land into 34 lots with two residual lots and a second stage subdivision of one residual lot into two lots, (the Proposed Development) at 175 Tallawong Rd, Rouse Hill (the Subject Site). 2. The Subject Site is zoned part R2 Low Density Residential and part R3 Medium Density Residential under the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) and the Proposed Development is permissible within this zone. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 6 October 2020, and I presided over that conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's 'COVID-19 Pandemic Arrangements Policy' and a site view was not undertaken as part of the proceedings. 6. 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 consent to the Applicant's development application, subject to conditions. 7. 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. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows: 1. pursuant to the provisions of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), the requirements of cl 7(1) of SEPP 55 have been considered and they are satisfied in relation to those requirements as follows: 1. the Applicant has commissioned a Stage 1 Contamination Assessment Report from Woodlots and Wetlands Pty Ltd dated 6 November 2019; 2. the Contamination Assessment Report confirmed that the east and west portions of the Subject Site have been used for rural/residential activities such as domestic dwellings, water storage and low intensity grazing. The area around the dwellings has no evidence of contamination and the report concluded that there is no need for a Stage 2 assessment of this area; 3. however, the central portion of the Subject Site has been used to store machinery and materials such as pipes and fittings. Therefore, the central part of the property was subject to a Stage 2 contamination assessment; 4. the results from the Stage 2 assessment conducted within the central portions of the Site confirmed that the concentrations of all potentially toxic contaminants were all less than the Health Screening Levels for urban residential land uses; 5. the substrate under the concrete shed in the central area and the substrate under the existing buildings on the property were not sampled, and the Respondent has incorporated suitable conditions of consent to address any potential contamination of the areas not sampled such that the Subject Site would be suitable for its intended use; 6. the Respondent is therefore satisfied that the provisions of cl 7(1) of SEPP 55 have been addressed; 1. the Respondent is satisfied that the Proposed Development complies with the development standards and controls under the Growth Centres SEPP and the Blacktown City Council Growth Centres Precincts Development Control Plan 2010, subject to the Respondent's conditions of consent; 2. DA-19-01887 as lodged with the Respondent was placed on notification for 14 days between 3 February 2020 until 17 February 2020 and no submissions were received in response to the notification. 1. Having considered the advice of the Parties, provided above at [8], I agree that 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. 2. I am further 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. 3. 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. 4. 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. 5. The Court orders that: 1. The applicant is granted leave to amend Development Application No. DA-19-01887 and to rely upon the following amended plans and documents: Plan Reference Drawing No. Prepared by: Revision and Date Public Domain Plan – Overall View (Sheet 1 of 2) - Malcolm Smith Pty Limited 7.4.2020 Public Domain Plan – Detail View (Sheet 2 of 2) - Malcolm Smith Pty Limited 7.4.2020 Building Envelope Plan (Sheet 1 of 3) - Malcolm Smith Pty Limited 12.12.2019 Building Envelope Plan – Detail Plan (Sheet 2 of 3) - Malcolm Smith Pty Limited 12.12.2019 Building Envelope Plan – Detail - Malcolm Smith Pty Limited 1.4.2020 Cover Sheet - Malcolm Smith Pty Limited Issue B, 06.04.2020 Conceptual Engineering Plan (Sheet 1 of 32) 2624DA1-1 Malcolm Smith Pty Limited Issue B, 06.04.2020 General Arrangement Plan (Sheet 2 of 32) 2624DA1-2 Malcolm Smith Pty Limited Issue B, 06.04.2020 Bulk Earthworks Plan (Sheet 3 of 32) 2624DA1-3 Malcolm Smith Pty Limited Issue B, 06.04.2020 Bulk Earthworks – Section A-A (Sheet 4 of 32) 2624DA1-4 Malcolm Smith Pty Limited Issue A, December 2019 Bulk Earthworks – Section B-B (Sheet 5 of 32) 2624DA1-5 Malcolm Smith Pty Limited Issue A, December 2019 Bulk Earthworks – Sections C-C and D-D (Sheet 6 of 32) 2624DA1-6 Malcolm Smith Pty Limited Issue A, December 2019 Longitudinal Section – Tallawong Road and Typical Cross Section (Partial Width Road Reconstruction) (Sheet 7 of 32) 2624DA1-7 Malcolm Smith Pty Limited Issue A, December 2019 Cross Sections – Tallawong Road (Partial Width Road Reconstruction) (Sheet 8 of 32) 2624DA1-8 Malcolm Smith Pty Limited Issue A, December 2019 Longitudinal Section – Proposed Road 1 and Typical Cross Section (Sheet 9 of 32) 2624DA1-9 Malcolm Smith Pty Limited Issue A, December 2019 Cross Sections – Proposed Road 1 (Sheet 10 of 32) 2624DA1-10 Malcolm Smith Pty Limited Issue A, December 2019 Longitudinal Section – Proposed Road 2 and Typical Cross Section (Sheet 11 of 32) 2624DA1-11 Malcolm Smith Pty Limited Issue A, December 2019 Cross Sections – Proposed Road 2 (Sheet 12 of 32) 2624DA1-12 Malcolm Smith Pty Limited Issue A, December 2019 Longitudinal Section – Proposed Road 3 and Typical Cross Section (Sheet 13 of 32) 2624DA1-13 Malcolm Smith Pty Limited Issue A, December 2019 Cross Sections – Proposed Road 3 (Sheet 14 of 32) 2624DA1-14 Malcolm Smith Pty Limited Issue A, December 2019 Longitudinal Section – Proposed Road 4 and Typical Cross Section (Sheet 15 of 32) 2624DA1-15 Malcolm Smith Pty Limited Issue A, December 2019 Cross Sections – Proposed Road 4 (Sheet 16 of 32) 2624DA1-16 Malcolm Smith Pty Limited Issue A, December 2019 Longitudinal Section – Proposed Temporary Public Road, Typical Cross Section and Cross Sections (Sheet 17 of 32) 2624DA1-17 Malcolm Smith Pty Limited Issue A, December 2019 Stormwater Drainage Catchment Plan (Sheet 18 of 32) 2624DA1-18 Malcolm Smith Pty Limited Issue B, 06.04.2020 Plan – Temporary OSD/Water Quality System, Above Ground OSD Summary Sheet and Sections A-A & B-B (Sheet 19 of 32) 2624DA1-19 Malcolm Smith Pty Limited Issue B, 06.04.2020 Conceptual Engineering Plan – Proposed Lot Pads and Retaining Walls (Sheet 20 of 32) 2624DA1-20 Malcolm Smith Pty Limited Issue B, 06.04.2020 Conceptual Engineering Plan – Proposed Lot Pads and Retaining Walls (Sheet 21 of 32) 2624DA1-21 Malcolm Smith Pty Limited Issue B, 06.04.2020 Waste Collection Vehicle Swept Paths (Sheet 22 of 32) 2624DA1-22 Malcolm Smith Pty Limited Issue D, December 2019 Drainage Calculations – Hydrological Results (5yr and 20yr ARI Design Storm Event) (Sheet 23 of 32) 2624DA1-23 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Calculations – Hydraulic Results (5yr and 20yr ARI Design Storm Event) (Sheet 24 of 32) 2624DA1-24 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Longitudinal Sections – Lines 2 & 3 (5yr) (Sheet 25 of 32) 2624DA1-25 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Longitudinal Sections – Lines 4 & 5 (5yr) (Sheet 26 of 32) 2624DA1-26 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Logitudinal Sections – Lines 7 & 9 (20yr) (Sheet 27 of 32) 2624DA1-27 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Calculations – Hydrological Results (100yr ARI Design Storm Event) (Sheet 28 of 32) 2624DA1-28 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Calculations – Hydraulic Results (100yr ARI Design Storm Event) (Sheet 29 of 32) 2624DA1-29 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Longitudinal Sections – Lines 2 & 3 (100yr) (Sheet 30 of 32) 2624DA1-30 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Longitudinal Section – Line 4 (100yr) (Sheet 31 of 32) 2624DA1-31 Malcolm Smith Pty Limited Issue B, 06.04.2020 Drainage Longitudinal Sections – Lines 7 & 9 (100yr) (Sheet 32 of 32) 2624DA1-32 Malcolm Smith Pty Limited Issue B, 06.04.2020 Plan of Temporary Stormwater Outlet over Lot 1 DP 1244483 (No.163 Tallawong Road) (Sheet 1 of 2) 2624-TEMP SW Outlet-1 Malcolm Smith Pty Limited Issue A 06.10.2020 Longitudinal Section – Temporary Stormwater Outlet over Lot 1 DP1244483 (No. 163 Tallawong Road) (Sheet 2 of 2) 2624-TEMP SW Outlet-2 Malcolm Smith Pty Limited Issue A 06.10.2020 Documents Report on Dam Condition and the Methodology to Decommission Two Dams at 175 Tallawong Road, Rouse Hill Lot 45, DP30486 prepared by Woodlots and Wetlands Pty Ltd dated 6 April 2020 MUSIC Link Report prepared by Malcolm Smith Pty Limited dated 9 April 2020 1. The Applicant to pay the Respondent's costs thrown away in the agreed sum of $3,000 within 21 days from the date of receiving a tax invoice from the Respondent in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). 2. The appeal is upheld. 3. Development Application No. DA 19-01887 (as amended) for the Torrens Title subdivision over two stages at Lot 45 in Deposited Plan 30186, otherwise known as 175 Tallawong Road, Rouse Hill is approved, subject to conditions included at Annexure A. The two stages are: 1. Stage 1 –Torrens title subdivision of the R2 zoned land into 34 residential lots and 2 residue lots including demolition, new roads, construction of a temporary road over proposed lot 450 linking the new lots to the local roads, stormwater drainage, earthworks, retaining walls and utility services. 2. Stage 2 – Subdivision of residue lot created in Stage 1 into 2 residential lots. …………………………….. M Chilcott Commissioner of the Court Annexure A (410269, 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 October 2020