ETRA Pty Ltd ATF PF Formation Trust v Hornsby Shire Council [2019] NSWLEC 1045

Land and Environment Court New South Wales

Medium Neutral Citation: ETRA Pty Ltd ATF PF Formation Trust v Hornsby Shire Council [2019] NSWLEC 1045 Hearing dates: Conciliation conference on 15 January 2019 Date of orders: 05 February 2019 Decision date: 05 February 2019 Jurisdiction: Class 1 Before: Morris AC Decision: See [8] below Catchwords: Modification of consent, developer contributions Legislation Cited: Environmental Planning and Assessment Act 1979; Texts Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Category: Principal judgment Parties: ETRA Pty Ltd ATF PF Formation Trust (Applicant) Hornsby Shire Council (Respondent) Representation: Solicitors: M Sonter, Mills Oakley (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/256807 Publication restriction: No

Judgment 1. PF Formation (applicant) has obtained development consent (DA/1380/2014) which authorises use of land at 97 and 113 Old Telegraph Road, Maroota for a sandstone extractive industry. The consent requires payment of contributions under s 7.11 of the Environmental Planning and Assessment Act 1979 (EP&AAct) for road haulage. The applicant is appealing the amount sought under the condition and seeking modification of the consent pursuant to s 4.55(1A) of the Act. 2. The issues in the case are whether the payment sought is reasonable given the distance of roads to be utilised within the Hornsby Council area. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 January 2019. I have presided over the conciliation conference. 4. At and following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is to uphold the appeal and approve the application. The agreement was based on the small area of roadway to be utilised within the Hornsby Local Government area by vehicles associated with the quarry. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 6. I have formed this state of satisfaction because the only section of roadway that would be utilised by the applicant in relation to the quarry is that portion of Old Telegraph Road that immediately adjoins the site and, is in fact only the eastern half of that road opposite Roberts Road. The remaining haulage route would be within The Hills Shire local government area. There are no legislative provisions that provide for contributions to be made to The Hills Shire Council. 7. 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. 8. The Court orders: 1. The appeal is upheld. 2. The application pursuant to section 4.55 (1A) of the Environmental Planning and Assessment Act 1979 (Modification application DA/1380/2014A) is approved. 3. Development Consent granted by the Sydney North Planning Panel on 13 July 2017 (Development Consent No. DA/1380/2014) for a sandstone extractive industry in respect of the land known as Lots 1 and 2 in Deposited Plan 732708, (Nos. 97 and 113 Old Telegraph Road, Maroota) is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 in the terms set out in Annexure "A". 4. The conditions of the development consent are now as set out in Annexure "B". ___________________________ Sue Morris Acting Commissioner of the Court Annexure A (82.9 KB, pdf) Annexure B (593 KB, pdf)