Land and Environment Court New South Wales Medium Neutral Citation: Isaac Property Developments Pty Limited v Hawkesbury City Council [2018] NSWLEC 1573 Hearing dates: Conciliation conference on 26 October 2018 Date of orders: 13 November 2018 Decision date: 13 November 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Contamination of Land Category: Principal judgment Parties: Isaac Property Developments Pty Limited (Applicant) Hawkesbury City Council (Respondent) Representation: Solicitors: S Hale, Mills Oakley (Applicant) J McCullan, Marsdens Law Group (Respondent) File Number(s): 2017/327958 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Isaac Property Developments Pty Limited against the deemed refusal by Hawkesbury City Council of development application No. DA0078/17. The application seeks consent for demolition of existing structures, construction of a child care centre, food & drink premises with associated car parking, signage, landscaping and earthworks at 752 George Street, Windsor (Lot 40 DP 129444). 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. I confirm that: 1. the development has received the General Terms of Approval from the relevant concurrence authorities (s 4.5 of the Environmental Planning and Assessment Act 1979) and their conditions are incorporated in the attached conditions. 2. the precondition to consent contained in cl 6.7 of the Hawkesbury Local Environmental Plan 2012 has been satisfied by the applicant through the new access road proposed and the services design detailed in the approved plans; 3. The application was lodged with an Environmental Site Assessment of land. A further Contamination Investigation Report was prepared in February 2017. The Council notes it is satisfied that these report address the precondition at cl 7 of State Environmental Planning Policy No 55 – Contamination of Land. 1. 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 the development application and rely on the following amended plans and documents in the proceedings: Plans Drawing Name Prepared by Drawing Number Date Site and Floor Plan D + R Architects 15042 DA 1.04 T 28 May 2018 Elevations D + R Architects 15042 DA 1.06 I 14 May 2018 Sections and Signage D + R Architects 15042 DA 1.07 F 14 May 2018 Pylon Sign D + R Architects 15042 PS B 2 May 2018 Landscape Plans Mara Consulting Pages 01-08 30 May 2018 Concept Engineering Plan (Road and Drainage Works) Martens and Associates Pty Ltd PS01-DZ00 Rev B 17 May 2018 Sections – Sheet 1 Martens and Associates Pty Ltd PS01-DZ10 Rev B 17 May 2018 Sections – Sheet 2 Martens and Associates Pty Ltd PS01-DZ11 Rev B 17 May 2018 Internal Sewer Plan Martens and Associates Pty Ltd PS01-F200 Rev C 24 May 2018 Existing Sewer Network Martens and Associates Pty Ltd PS01-F205 Rev A 17 May 2018 Documents Document Name Prepared by Date Bushfire Protection Assessment Report Ecological Australia 20 July 2018 Flood Response and Emergency Plan Henry & Hymas Consulting Engineers Pty Ltd May 2018 Plan of Management – Bligh Park Childcare and Before & After School Care Bligh Park Childcare - 1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $7,500.00 to be payable within 28 days of orders made. 2. The appeal is upheld. 3. Development Application No. DA0078/17 for the demolition of existing structures, construction of a child care centre, four food & drink premises with associated car parking, signage and landscaping on the land known as Lot 40 DP 129444, 752 George Street, South Windsor is approved subject to the conditions of consent in Annexure "A". ………………………. D M Dickson Commissioner of the Court Annexure A (176 KB, pdf) Integrated Development GTA (431 KB, pdf) GTA (142 KB, pdf) 327958.17 Dickson C Site + Floor Plan (813 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: 13 November 2018