Land and Environment Court New South Wales Medium Neutral Citation: Guntawong Developments No1 Pty Ltd ATF Guntawong Dev No1 Trust v Blacktown City Council [2023] NSWLEC 1403 Hearing dates: Conciliation conference on 16 June, 30 June 2023, final submissions 6 July 2023 Date of orders: 27 July 2023 Decision date: 27 July 2023 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [27]-[29]. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Precincts - Central River City) 2021, Appendix 11 s 2.6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Guntawong Developments No1 Pty Ltd ATF Guntawong Dev No1 Trust (Applicant) Blacktown City Council (Respondent) Representation: Counsel: A Scully (Solicitor) (Applicant) L Raffaele (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2022/144270 2022/144279 2022/144288 Publication restriction: No Judgment 1. COMMISSIONER: The circumstances in relation to these proceedings require me to commence this judgement with some background information. Background 1. An area of land known as 172 Guntawong Road, Rouse Hill has been the subject of a development consent for subdivision. That particular consent comes under the reference number DA-17-02747, and among other things had the effect of setting the scene for further subdivision of the land I have described as 172 Guntawong Road, Rouse Hill and establishing certain infrastructure particulars. Three lots would be created under DA-17-02747: Lots 101, 102 and 103. The parties describe DA-17-02747as the "parent subdivision" to these three lots. Recently the Court approved a modification application (MA) for DA-17-02747 (Guntawong Developments No1 Pty Ltd ATF Guntawong Dev No1 Trust v Blacktown City Council [2023] NSWLEC 1362). Among other things, this MA released certain deferred commencement conditions previously applying to DA-17-02747. 2. In turn, there are three development consents applying to Lots 101, 102 and 103 (introduced above) which have the effect of advancing the land within each lot along the path to subdivision certificates, and towards suitability for end sale. Each of these three development consents also have deferred commencement conditions. It is of note that these consents were issued by the Court, following a conciliated agreement between the parties (Guntawong Estate Pty Ltd v Blacktown City Council (No. 1) [2021] NSWLEC 1755, Guntawong Estate Pty Ltd v Blacktown City Council (No. 2) [2021] NSWLEC 1756, Guntawong Estate Pty Ltd v Blacktown City Council (No. 3) [2021] NSWLEC 1757). The matters which are the subject of this judgement 1. This judgment relates to three appeals brought by the applicant under s 8.9 of EPA Act against the deemed refusal by Blacktown City Council (Council) of modification applications (MAs) for each of deferred commencement consents applying to Lots 101, 102 and 103. The reference details of these MAs which are the subject of this judgement are outlined in the table below. Court proceedings reference Development Consent reference Modification Application reference Lot number under DA-17-02747 2022/144270 DA-17-02750 MOD-22-00115 Lot 101 2022/144279 DA-17-02749 MOD-22-00117 Lot 102 2022/144288 DA-18-02534 MOD-22-00118 Lot 103 1. The particulars of each of the MAs have been described in jurisdictional statements provided by the parties on 6 July 2023, as follows: 1. With respect to proceedings 2022/144270: "modify DA 17 02750 to amend conditions 2.1.1, 4.1.3 and 4.7.1 to reflect the revised subdivision plans and conceptual engineering plan detail due to the amended drainage strategy for the parent subdivision (DA 17 02747)." 1. With respect to proceedings 2022/144279: "modify DA-17-02749 to amend conditions 2.1.1, 4.1.3 and 4.7.1 to reflect the revised subdivision plans and conceptual engineering plan detail, correct a minor error in the description of the development due to the amended drainage strategy for the parent subdivision (DA 17 02747)." 1. With respect to proceedings 2022/144288: "modify DA 18 02534 to amend conditions 2.1.1, 4.1.3 and 4.7.1 to reflect the revised subdivision plans and conceptual engineering plan detail, correct a minor error in the description of the development, include a condition of (operational) development consent for entering of a voluntary planning agreement for the provision of off site water quality facilities and issuing an operational consent due to the amended drainage strategy for the parent subdivision (DA 17 02747)." 1. I am aware that in relation to each of the MAs, the Court has approved amendments pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021. This occurred with the Court's granting of Notices of Motions in relation to each of the three matters on 28 April 2023. Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) in relation to the three matters, which was held on 16 June 2023. After the conciliation conference the parties filed a signed agreement as to the terms of a decision in each of the proceedings that would be acceptable to the parties. 2. This decision, in each case, involved the Court upholding the appeals and granting consent to each of the Mas, subject to conditions. 3. 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. 4. The parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to modify each of the consents nominated in Table 1. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties' provided jurisdictional statements in relation to each of the matters with the intention of assisting here. Having regard to these jurisdictional statements provided by the parties, I find as follows with respect to jurisdiction, in relation to all three matters. Jurisdiction Section 4.56(1) of the Environmental Planning and Assessment Act 1979 1. Subsection (1)(a) requires the consent authority to be satisfied: "…that 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" 1. I can readily find that I agree with the parties' jurisdictional statements which find positively in relation to this test for each of the MAs. 2. In regard to proceedings 2022/144270, the development as modified by the Amended Modification Application is substantially the same development as that approved by DA-17-02750, as: * the changes have been sought to align with the amendments to DA-17-02747; and * there have been no changes to the lot layouts, yield or lot sizes. 1. In regard to proceedings 2022/144279, the development as modified by the Amended Modification Application is substantially the same development as that approved by DA-17-02749, as: * the lot layouts, yield and lot sizes have largely been maintained; and * the changes have been sought to align with the amendments to DA-17-02747. 1. In regard to proceedings 2022/144288, the development as modified by the Amended Modification Application is substantially the same development as that approved by DA-18-02534, given that there have been no changes to the lot layouts, yield or lot sizes. 2. In regard to each of the three proceedings, and for the reasons cited above, I am satisfied that 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. 3. Subsections 1(b), (c) and (d) relate to notification and the consideration of submissions. I accept the parties' advice that there was no requirement to notify these MAs under relevant policy provisions. Council advises it has also been mindful of the particular provision at subs (1)(c) which requires that the consent authority notify, or make reasonable attempts to notify, each person who made a submission in respect of the original development application, by sending written notice to the last address known to the consent authority of the objector or other person. I accept Council's advice that there was a sole person who made a submission in respect of each of the original development applications (ie DA-17-02750, DA-17-02749, DA-18-02534) and that that person was notified, and that following the notification no submissions were received in respect of that notification. Therefore, the requirements of subs 1(b), (c) and (d) have been met. Section 4.56(1A) of the Environmental Planning and Assessment Act 1979 1. Mindful of subs (1A), I have also given consideration to relevant matters under s 4.15(1) of the EPA Act and note as follows. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The contamination profile of the site's, the subject of the MAs, was considered during the assessment of DA-17-02747, where the consent authority was satisfied that the site is suitable for the proposed residential use and that no site remediation is required. 2. Accordingly, I am satisfied that the site is suitable for the proposed residential use, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. State Environmental Planning Policy (Precincts - Central River City) 2021 1. The site is located within the Riverstone East Precinct and the relevant statutory controls are contained within Appendix 11, titled Blacktown City Council Blacktown Growth Centres Precinct Plan (Precinct Plan). I note that s 2.6 of the Precinct Plan provides that land to which the Precinct Plan applies may be subdivided with development consent. I accept the advice of the parties and am satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to ensure that infrastructure is available when it is required. I am satisfied with the detailed advice of the parties that there are no jurisdictional breaches of State Environmental Planning Policy (Precincts - Central River City) 2021 within the MAs. Reasons for the grant of consent 1. I further note that I have considered the reasons given for the grant of the consent that is sought to be modified. In this instance, this involved examination of the Court judgments referenced at [3]. Conclusion 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decisions in relation to each proceedings are decisions that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Orders 1. Accordingly, the following orders are made in respect of the three proceedings. 2. In Proceedings 2022/144270, the Court orders that: 1. The Appeal is upheld. 2. The Modification Application (MOD‑22‑00115), which seeks consent to modify DA‑17‑02750 to reflect the revised subdivision plans and conceptual engineering plan detail due to the amended drainage strategy for the parent subdivision (DA‑17‑02747), is determined by approving the modifications as set out in Annexure A. 3. As a consequence of Order (2) above, Development Consent No DA-17-02750 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. 1. In Proceedings 2022/144279, the Court orders that: 1. The Appeal is upheld. 2. The Modification Application (MOD‑22‑00117), which seeks consent to modify DA‑17‑02749 to reflect the revised subdivision plans and conceptual engineering plan detail, correct a minor error in the description of the development due to the amended drainage strategy for the parent subdivision (DA‑17‑02747), is determined by approving the modifications as set out in Annexure C. 3. As a consequence of Order (2) above, Development Consent No DA‑17‑02749 is now subject to the consolidated, modified conditions of development consent set out in Annexure D. 1. In Proceedings 2022/144288, the Court orders that: 1. The Appeal is upheld. 2. The Modification Application (MOD‑22‑00118), which seeks consent to modify DA‑18‑02534 to reflect the revised subdivision plans and conceptual engineering plan detail, correct a minor error in the description of the development, include a condition of operational development consent for entering of a voluntary planning agreement for the provision of off‑site water quality facilities and issuing of an operational consent due to the amended drainage strategy for the parent subdivision (DA-17-02747), is determined by approving the modifications as set out in Annexure E. 3. As a consequence of Order 2 above, Development Consent No DA-18-02534 is now subject to the consolidated, modified conditions of development consent set out in Annexure F. P Walsh Commissioner of the Court Annexure A Annexure B Annexure C Annexure D Annexure E Annexure F ********** 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: 28 July 2023