Signature Properties No. 2 Pty. Ltd. v Blacktown City Council [2019] NSWLEC 1037

Land and Environment Court New South Wales

Medium Neutral Citation: Signature Properties No. 2 Pty. Ltd. v Blacktown City Council [2019] NSWLEC 1037 Hearing dates: Conciliation conferences on 29 October 2018; 16 & 23 November 2018; 7 & 12 December 2018 Date of orders: 06 February 2019 Decision date: 06 February 2019 Jurisdiction: Class 1 Before: Adam AC Decision: See orders at [15] below Catchwords: DEVELOPMENT APPLICATION: staged residential subdivision subdivision: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Signature Properties No. 2 Pty. Ltd. (Applicant) Blacktown City Council (Respondent) Representation: Solicitors: D Tyrrell, McKees Legal Solutions (Applicant) L Raffaele, Bartier Perry Lawyers (Respondent) File Number(s): 2018/120873 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant, Signature Properties No. 2 Pty Ltd has appealed the decision of the respondent, Blacktown City Council, to refuse consent for Development Application No. SPP – 17 – 00045. 2. The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) within Class 1 of the Court's jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EPA Act. 3. The land subject to the development application comprises Lot 35 in Deposited Plan 30186 otherwise known as 103 Tallawong Road, Rouse Hill. Owner's consent has been provided. 4. The land is zoned part R3 and part SP2 pursuant to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP (SRGC)). The subject application seeks consent for a staged residential subdivision into 3 super lots and 1 residue lot, and staged community title subdivision to create 61 community title lots for housing and 5 strata lots, construction of 61 dwelling houses and 5 studio dwellings, public road construction and private laneways under community title, tree removal, landscaping, street tree planting, stormwater drainage and other ancillary works. The subdivision is permissible with consent: under SEPP (SRGC) cll 4.1AB, 4.1AD & 4.1 AF. 5. The Court arranged conciliation conferences under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which were held on 29 October 2018; 16 & 23 November 2018; 7 & 12 December 2018, I have presided over the conciliation conferences. There were no third party objectors. 6. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 7. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings parties and explained how the jurisdictional prerequisites have been satisfied. 9. The erection of the dwellings and studio dwellings is permissible with consent in the zones in which they are proposed. The preconditions for the erection of the dwellings and studio dwellings are satisfied, for the reasons set out in the Statement of Environmental Effects (SEE) lodged with the Development Application. 10. The site is land to which cl 7(4) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), applies. A consent authority cannot grant consent to carrying out of development to which cl 7.4 applies unless satisfied that the requirements of cl 7(1), (2) and (3) have been met. A preliminary investigation (PSI) has been undertaken by NG Child & Associates in accordance with cl 7(2) and (3) and is annexed to the SEE. The PSI's conclusion was that a further detailed contamination assessment be undertaken following demolition and rubbish removal. Appropriate conditions have been imposed by Council (Condition 4.7). The preconditions in cl 7(1) of SEPP 55 have been met. 11. The DA is integrated development given that the concurrence of the Rural Fire Service (RFS) is required. The RFS issued a letter on 20 September 2018 providing the General Terms of Approval (GTAs) pursuant to s 100B of the Rural Fires Act 1997. The GTAs are incorporated in Condition 2.7. 12. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.. For the reasons given in [9], [10] and [11] above I am satisfied that the necessary preconditions for granting approval have been met. 13. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 14. The Court notes that: 1. the documents referred to in conditions 2.1.1 and 6.1.4 of the conditions of consent contained at Annexure A (see [15(1)] below) are located on the USB provided by the parties and attached to the Court's file; 2. the documents on the USB have been downloaded and saved on the Court's file management system, under the folder heading "Judgment & Orders". 1. The Court orders: 1. The Applicant is granted leave to rely upon the following amended material, as referenced in conditions 2.1.1 and 6.1.4 of the conditions of consent contained at Annexure "A": Subdivision Drawings prepared by Norton Survey Partners Drawing Reference Dated Revision Plan of proposed subdivision prepared by Norton Survey Partners, Reference 05438, Sheet S1 27/08/2018 B Plan of proposed community title subdivision, Lot 100 in Subdivision Plan 05438-S1, Sheet C1 27/08/2018 C Plan of proposed community title subdivision, Lot 101 in Subdivision Plan 05438-S1, Sheet C2 27/08/2018 C Plan of proposed community title subdivision, Lot 102 in Subdivision Plan 05438-S1, Sheet C3 27/08/2018 C Plan of proposed strata subdivision of Lot 9, Community Scheme No. 1, Reference 05438 SP-CS1-Lot 9, Sheets 1 and 2 27/08/2018 B Plan of proposed strata subdivision of Lot 10, Community Scheme No. 1, Reference 05438 SP-CS1-Lot 10, Sheets 1 and 2 20/4/18 A2 Plan of proposed strata subdivision of Lot 18, Community Scheme No. 1, Reference 05438 SP-CS1-Lot 18, Sheets 1 and 2 19/12/17 A1 Plan of proposed strata subdivision of Lot 14, Community Scheme No. 2, Reference 05438 SP-CS2-Lot 14, Sheets 1 and 2 27/08/2018 B Plan of proposed strata subdivision of Lot 14, Community Scheme No. 3, Reference 05438 SP-CS3-Lot 14, Sheets 1 and 2 27/08/2018 B