Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2018] NSWLEC 1514 Hearing dates: Conciliation conference on 18 July 2018; 8 August 2018 and 5 September 2018 Date of orders: 26 September 2018 Decision date: 26 September 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: MODIFICATION APPLICATION – deferred commencement condition – application to change engineering specifications and conditions of deferred commencement - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: E Fleming, Solicitor (Applicant) L Mulligan, Solicitor (Respondent) Solicitors: Swaab Attorneys (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/144322 Publication restriction: No Judgment 1. COMMISSIONER: This is an application by Universal Property Group Pty Ltd seeking to modify conditions of development consent JRPP 16-03321 granted by the Court on 6 June 2017 in proceedings no. 2016 / 278295. The Court granted consent was for subdivision of Lot 5 in DP 262886 into 8 lots (including 6 Residential Lots, 1 RE1 zoned Lot and 1 SP2 zoned Lot) including ancillary storm water and public domain landscaping works, demolition of existing structures and tree removal within and adjoining the proposed public roads, on land known as 312 South Street, Marsden Park. The application seeks to delete the deferred commencement conditions and change the hydraulic engineering specifications. Universal Property Group Pty Ltd appeals against a deemed refusal of that application by Blacktown City Council. 2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 4. 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. 5. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is granted leave to amend its application to: 1. include Lot 45 DP262886 and Lot 4 DP1202472; and 2. rely upon the following engineering plans contained at Annexure "A": Drawing Title Date Cover Sheet Sheet Index, Locality Plan and Legend 29 September 2018 SY170117-DA-02 Revision D Overall Site Plan and General Notes 29 September 2018 SY17117-DA-03 Revision D Engineering Plan 1 of 8 29 September 2018 SY17117-DA-04 Revision D Engineering Plan 2 of 8 29 September 2018 SY17117-DA-05 Revision D Engineering Plan 3 of 8 29 September 2018 SY17117-DA-06 Revision D Engineering Plan 4 of 8 29 September 2018 SY17117-DA-07 Revision D Engineering Plan 5 of 8 29 September 2018 SY17117C08 Revision D Engineering Plan 6 of 8 29 September 2018 SY17117-DA-09 Revision D Engineering Plan 7 of 8 29 September 2018 SY170117-DA-10 Revision D Engineering Plan 8 of 8 29 September 2018 SY170117-DA-11 Revision D Earthworks Plan 29 September 2018 SY170117-DA-12 Revision D Road Longitudinal Sections 1 of 3 29 September 2018 SY170117-DA-13 Revision D Road Longitudinal Sections 2 of 3 29 September 2018 SY170117-DA-14 Revision D Road Longitudinal Sections 3 of 3 29 September 2018 SY170117-DA-15 Revision D Road No. 1 Cross Sections 29 September 2018 SY170117-DA-16 Revision D Typical Road Cross Sections 29 September 2018 SY170117-DA-17 Revision D Pre Development Catchment Plan 29 September 2018 SY170117-DA-18 Revision D Water Quality and Onsite Detention Catchment Plan 29 September 2018 SY170117-DA-19 Revision D Onsite Detention Basin 1 - Plan 29 September 2018 SY170117-DA-20 Revision D Onsite Detention Basin 1 - Sections 29 September 2018 SY170117-DA-21 Revision D Onsite Detention Basin 2 – Plan and Sections 29 September 2018 SY170117-DA-22 Revision D Onsite Detention Basin 1 and 2 Details 29 September 2018 SY170117-DA-23 Revision D Basin 1 and 2 Water Quality Outlets Details (Stage 1) 29 September 2018 SY170117-DA-24 Revision D Basin 1 and 2 Water Quality Outlets Details (Stage 2) 29 September 2018 SY170117-DA-25 Revision D Calculations Sheet 1 29 September 2018 SY170117-DA-26 Revision D Calculations Sheet 2 29 September 2018 1. The Applicant is to pay the Respondent's costs in the sum of $3,500. 2. The appeal is upheld. 3. Development Consent DA JRPP-16-03321 (as amended) approved by the Land and Environment Court Approval (Proceedings No. 2016/278295) for the subdivision of Lot 50 DP 1234732 (formally Lot 5 in DP 262886) into 8 lots including stormwater works on Lot 50 in DP 1234732, Lot 45 DP262886 and Lot 4 DP1202472 and public domain landscaping works, demolition of existing structures and tree removal is modified in accordance with the modification of conditions as set out in Annexure B. 4. As a consequence of Order 2(d) above, Development Consent DA JRPP-16-03321 is now subject to the consolidated, modified conditions of consent set out in Annexure C. ………………………. Commissioner Gray Annexure A (16.5 MB, pdf) Annexure B (178 KB, pdf) Annexure C (584 KB, 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: 28 September 2018