Land and Environment Court New South Wales Medium Neutral Citation: Rega Investments Pty Ltd v Fairfield City Council [2021] NSWLEC 1413 Hearing dates: Conciliation conference on 15 July 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. 437.1/2019 granted by the Respondent on 10 June 2020 for the Torrens Title subdivision of an existing lot to create two (2) industrial lots, and removal of vegetation on the land at 96 Newton Road, Wetherill Park (being Lot 4 DP 851250) is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 as set out in Annexure "A". (3) As a consequence of Order (2), Development Consent No. 437.1/2019 is subject to the consolidated, modified conditions of consent set out in Annexure "B". Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55(1A), 8.9 Land and Environment Court Act 1979, s 34 Fairfield Local Environmental Plan 2013, cl 2.3 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Fairfield Citywide Development Control Plan 2013 Category: Principal judgment Parties: Rega Investments Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: M Seymour (Applicant) A Seton (Solicitor) (Respondent) Solicitors: LCI Legal Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/356002 Publication restriction: No Judgment 1. COMMISSIONER: Rega Investments Pty Ltd (the Applicant) has appealed the deemed refusal by Fairfield City Council (the Respondent) of its modification application no. 437.2/2019 seeking approval for the modification of conditions imposed with the grant of consent for the subdivision of land (the Proposed Modification) at 96 Newton Road, Wetherill Park (the Subject Site). 2. The Subject Site is zoned IN1 General Industrial under the provisions of cl 2.3 of Fairfield Local Environmental Plan 2013 (FLEP). 3. The appeal comes to the Court pursuant to s 8.9 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 4.55(1A) 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 15 July 2021, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy. A site view was not undertaken as part of the conciliation conference. 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 matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of s 4.55(1A) of the EP&A Act, the Parties have confirmed, and I am satisfied that: 1. the proposed modification is of minimal environmental impact; 2. the 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); 3. pursuant to clause 1.5.1(k) of Appendix B of Fairfield Citywide Development Control Plan 2013, as the modification application is of minimal environmental impact there is no requirement for the application to be notified, and no submissions are required to be considered in relation to the application. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to approve the application under s 4.55(1A) of the EP&A Act. 2. 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 4.55(1A) of the EP&A Act have been so satisfied. 3. 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. 4. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 5. 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. 6. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. 437.1/2019 granted by the Respondent on 10 June 2020 for the Torrens Title subdivision of an existing lot to create two (2) industrial lots, and removal of vegetation on the land at 96 Newton Road, Wetherill Park (being Lot 4 DP 851250) is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 as set out in Annexure "A". 3. As a consequence of Order (2), Development Consent No. 437.1/2019 is subject to the consolidated, modified conditions of consent set out in Annexure "B". ………………………….. M Chilcott Commissioner of the Court Annexure A (128111, pdf) Annexure B (140683, 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 July 2021