Land and Environment Court New South Wales Medium Neutral Citation: Roter Sand Pty Ltd v Maitland City Council [2021] NSWLEC 1750 Hearing dates: Conciliation conferences on 19 October 2021, 4 November 2021, 22 November 2021, 24 November 2021, 1 December 2021 Date of orders: 8 December 2021 Decision date: 08 December 2021 Jurisdiction: Class 1 Before: Clay AC Decision: I make the following orders: 1) The applicant is to pay the Council's costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $7,000 within 28 days. 2) The appeal is upheld. 3) Development consent is granted to Development Application No. 2020-169 (DA) for the construction of a manufactured home estate comprising 126 dwellings on the land known as Lots 1 and 2 DP302745 and Lot 1116 DP1256955 457 – 463 Cessnock Road, Gillieston Heights subject to the conditions contained at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – manufactured home estate – conciliation – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Maitland Local Environmental Plan 2011 State Environmental Planning Policy – Housing (SEPP Housing) State Environmental Planning Policy 36 – Manufactured Home Estates State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy No 55— Remediation of Land, cl 7 Category: Principal judgment Parties: Roter Sand Pty Ltd (Applicant) Maitland City Council (Respondent) Representation: Counsel: A McKelvey (Solicitor) (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Sparke Helmore Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/188616 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Maitland City Council (Council) of Development Application No. 2020-169 (DA) for the construction of a manufactured home estate comprising 126 dwellings on the land known as Lots 1 and 2 DP302745 and Lot 1116 DP1256955 457 – 463 Cessnock Road, Gillieston Heights (Site). 2. Commencing on 19 October 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). The conciliation was adjourned a number of times to allow additional information to be provided by the Applicant to the Council and for the experts in traffic to further engage, and for the amendment of the development application. 3. On 1 December 2021, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to note the amendment of the development application, make a consequential costs order and grant development consent to the amended development application. An agreement pursuant to s 34 of the Court Act was filed on the same day. 4. Pursuant to cl 55 of Environmental Planning and Assessment Regulation 2000 (EPA Regulation), an amendment to a development application only occurs upon the lodgement of the amended development application on the NSW Planning Portal. The amended development application was lodged on the NSW Planning Portal on 24 November 2021. The amended development application was filed with the Court on 29 November 2021 5. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 6. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. The parties have provided the Court with a Statement of Jurisdictional Prerequisites wherein they agree that the Court has power to grant development consent after setting out the relevant jurisdictional matters. 7. It is convenient to annex the Statement of Jurisdictional Prerequisites to this judgment as Annexure B. Having regard to the material filed with the DA and the amended DA, and the Statement of Jurisdictional Prerequisites, I am satisfied that there is power to grant development consent. 8. I do note that the Applicant does not seek subdivision of the site, nor does the DA itself constitute subdivision of the site. I note that: 1. The proposed development is permissible pursuant to Maitland Local Environmental Plan 2011 (MLEP 2011) and State Environmental Planning Policy 36 – Manufactured Home Estates (SEPP 36). 2. Although State Environmental Planning Policy – Housing (SEPP Housing) commenced on 26 November 2021 which repealed SEPP 36, a savings provision in SEPP Housing means that SEPP 36 continues to apply to the DA. 3. There is no non-compliance with any applicable provisions of MLEP 2011 or SEPP 36. 4. Pursuant to cl 7(1) of State Environmental Planning Policy No 55— Remediation of Land (SEPP 55), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated. I am satisfied from the site investigation carried out that the Site is suitable for the purpose for which the proposed development is to be carried out provided there is compliance with the proposed conditions. 5. The relevant provisions of State Environmental Planning Policy (Infrastructure) 2007, State Environmental Planning Policy (Koala Habitat Protection) 2020 and State Environmental Planning Policy (Coastal Management) 2018 have been complied with 6. The development application has been appropriately notified, and submissions taken into account by the parties in the decision to enter into the agreement. 1. Having considered the material provided to the Court, and for the reasons expressed by the parties, 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 Court Act. 2. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 3. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 4. I make the following orders: 1. The applicant is to pay the Council's costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $7,000 within 28 days. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. 2020-169 (DA) for the construction of a manufactured home estate comprising 126 dwellings on the land known as Lots 1 and 2 DP302745 and Lot 1116 DP1256955 457 – 463 Cessnock Road, Gillieston Heights subject to the conditions contained at Annexure 'A'. ………………………… P Clay Acting Commissioner of the Court (Annexure A) (411607, pdf) (Annexure B) (221075, 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: 08 December 2021