Land and Environment Court New South Wales Medium Neutral Citation: Global Organisation for Divinity v Parramatta City Council (No 3) [2011] NSWLEC 1377 Hearing dates: 28 November 2011 Decision date: 28 November 2011 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. The application to modify the approval by the Land and Environment Court for a meditation centre and associated parking at 44 Oakes Rd Winston Hills is approved by: 2.1 The deletion of the introductory paragraph to deferred commencement condition 1 and its replacement with the following introductory paragraph: In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, by 2 July 2012 as to the matters set out below. 2.2 New condition 1A that states: 1A Following issuing of any operative consent of the site, physical commencement must occur in accordance with the requirements of Section 95(4) of the Environmental Planning and Assessment Act by April 2016. Should physical commencement not occur by 1 April 2016, the consent shall lapse. Reason: to provide certainty to the community as to when physical commencement occur. Catchwords: MODIFICATION APPLICATION: appeal against time for satisfaction of deferred commencement conditions Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Global Organisation for Divinity v Parramatta City Council [2011] NSWLEC 1027 Category: Principal judgment Parties: Global Organisation for Divinity (Applicant) Parramatta City Council (Respondent) Representation: Counsel Mr G McKee, solicitor (Applicant) Ms C Morton, solicitor (Respondent) Solicitors McKees Legal Solutions (Applicant) Sparke Helmore(Respondent) File Number(s): 10991 of 2011 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal under s 96(8) of the Environmental Planning and Assessment Act 1979 against deferred commencement condition 1 granted by the Land and Environment Court on 1 April 2011 for a meditation centre and associated parking at 44 Oakes Rd Winston Hills ( Global Organisation for Divinity v Parramatta City Council [2011] NSWLEC 1027). The essence of the appeal is the time provided in condition 1 for the satisfaction of deferred commencement conditions. There was no dispute over the requirements in condition 1 (conditions 1(a) to 1(j)) that relate to the preparation of an Aboriginal Cultural Assessment report and other archaeological matters. 2With the agreement of the parties, the hearing was conducted as an on site hearing on 28 November 2011 and the judgment reflects the findings given on site. 3The introductory paragraph to deferred commencement condition 1 states (with the relevant parts shown in bold): In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, within nine months of the date of this consent as to the matters set out below. 4The applicant proposed that deferred commencement condition 1 be modified to read (with the relevant parts shown in bold): In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, by 2 July 2012 as to the matters set out below. 5At the on-site hearing, the council indicated that it did not oppose the applicants modified condition. The council also proposed an additional condition which states: 1A Following issuing of any operative consent of the site, physical commencement must occur in accordance with the requirements of Section 95(4) of the Environmental Planning and Assessment Act by April 2016. Should physical commencement not occur by 1 April 2016, the consent shall lapse. Reason: to provide certainty to the community as to when physical commencement occur. 6The applicant did not oppose new condition 1A. 7A number of local residents attended the on-site hearing however none wished to speak given the limited scope of the appeal. 8I accept the agreed position of the council and the applicant that an extension of time to carry out the work required by deferred commencement condition 1 is reasonable in the circumstances. The evidence indicates that work has commenced on the Aboriginal Cultural Assessment report and associated archaeological investigations. I am satisfied that there is no valid planning reason why an extension of time should not be granted to allow the applicant to undertake the required works. 9Consequently, the orders of the Court are: 1. The appeal is upheld. 2. The application to modify the approval by the Land and Environment Court for a meditation centre and associated parking at 44 Oakes Rd Winston Hills is approved by: 2.1 The deletion of the introductory paragraph to deferred commencement condition 1 and its replacement with the following introductory paragraph: In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this consent is not to operate until the person with the benefit of the consent satisfies the Council, by 2 July 2012 as to the matters set out below. 2.2 New condition 1A that states: 1A Following issuing of any operative consent of the site, physical commencement must occur in accordance with the requirements of Section 95(4) of the Environmental Planning and Assessment Act by April 2016. Should physical commencement not occur by 1 April 2016, the consent shall lapse. Reason: to provide certainty to the community as to when physical commencement occur. ________ G T Brown Acting Senior Commissioner 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: 11 January 2012