Anglican Church Property Trust Diocese of Sydney v Blacktown City Council [2022] NSWLEC 1198

Land and Environment Court New South Wales

Medium Neutral Citation: Anglican Church Property Trust Diocese of Sydney v Blacktown City Council [2022] NSWLEC 1198 Hearing dates: Conciliation conference on 29 March 2022 Date of orders: 19 April 2022 Decision date: 19 April 2022 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [9]. Catchwords: APPEAL – development application – temporary place of public worship – conciliation conference – agreement reached – orders made Legislation Cited: Blacktown Local Environmental Plan 2015, cl 7.5 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, Sch 5 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Category: Principal judgment Parties: Anglican Church Property Trust Diocese of Sydney (Applicant) Blacktown City Council (Respondent) Representation: Counsel: M Cottom (Solicitor) (Applicant) S Schneider (Solicitor) (Applicant)

Solicitors: Pikes & Verekers Lawyers (Applicant) Houston Dearn O'Connor Lawyers (Respondent) File Number(s): 2021/334348 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal concerns a development application for the construction of a temporary (5 year) place of public worship for up to 250 people, at 49-51 Excelsior Avenue, Marsden Park. The development application includes meeting/activity rooms, outdoor overflow seating, temporary ramps, a pathway to Excelsior Avenue, and temporary signage. There is an existing development consent for the construction of a place of public worship over three stages on the site. The proposed development for the temporary place of public worship is intended to be carried out after Stage 1A but before the remaining stages of that existing consent are carried out. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 29 March 2022. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 8 April 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended plans include changes to the temporary access path to Excelsior Avenue so that it is now proposed to be permeable and changes to the bin storage areas and temporary signage. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed jurisdictional statement that sets out the context of the proposed development and the preconditions to the granting of development consent. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * Development for the purpose of a place of public worship is permissible with development consent in the RU4 Primary Production zone in which the site is located, pursuant to the Blacktown Local Environmental Plan 2015 (BLEP). * The proposed temporary signage, as amended, is mounted at grade and within the fence line and is consistent with the objectives of Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 and satisfies the assessment criteria in Sch 5 of that instrument. * Based on the Statement of Environmental Effects dated 26 July 2021, I am satisfied that the services in cl 7.5 of the BLEP are available or adequate arrangements have been made to make them available when required. * Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The development application for the existing development consent was accompanied by a detailed site investigation, which concluded that the site can be readily made suitable for a residential or place of public worship use, subject to the preparation of a remedial action plan. The existing development consent requires the completion of Stage 1A site works which includes any remediation and validation, and as such the site will be suitable for the temporary use as a place of public worship. 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 accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, 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 EPA Act. 3. The Court notes that: 1. On 7 April 2022 the applicant, with the agreement of the respondent: 1. amended development application DA-21-01446 made to the respondent on 2 August 2021 by lodging the documents in the Schedule below on the NSW Planning Portal; and 1. (b) filed those documents with the Court. SCHEDULE Architectural plans prepared by Fulton Trotter Architects, Revision B, dated 8 February 2022 (i) DA-000 Cover Page (ii) DA-101 Existing Site Plan (iii) DA-102 Proposed Site Plan (iv) DA-103 Site Analysis (v) DA-104 Material & Finishes (vi) DA-201 Ground Floor Plan (vii) DA-211 Roof Plan (viii) DA-301 Elevations (ix) DA-311 Sections (x) DA-901 Shadow Diagrams Engineering drawings prepared by Martens & Associates Pty Ltd (xi) PS06-A000 Cover Sheet, Revision D, dated 9 March 2022 (xii) PS06-B300 Sediment & Erosion Control Plan, Revision B, dated 15 February 2022 (xiii) PS06-E100 Drainage Plan, Revision D, dated 9 March 2022 (xiv) PS06-E400 Drainage Catchment Plan, Revision A, dated 9 March 2022 (xv) PS06-E700 Water Quality Catchment Plan, Model & Result, Revision D, dated 9 March 2022 Other (xvi) Waste Management Plan dated 9 February 2022. 1. The Court orders that: 1. The appeal is upheld. 2. Development application DA-21-01446 made to the respondent on 2 August 2021 for the construction of a TEMPORARY (5 year) Place of Public Worship comprising a church with outdoor overflow seating (combined maximum capacity 250 seats), meeting/activity rooms, WCs, kitchen together with temporary ramps, pathway to Excelsior Avenue and temporary signage on the land described as Lot 9 in DP 1225976 known as 49-51 Excelsior Avenue, Marsden Park is determined by the granting of consent subject to the conditions in Annexure A.