NAVH Pty Ltd v Blacktown City Council [2019] NSWLEC 1179

Land and Environment Court New South Wales

Medium Neutral Citation: NAVH Pty Ltd v Blacktown City Council [2019] NSWLEC 1179 Hearing dates: Conciliation conference on 22 March 2019 Date of orders: 09 April 2019 Decision date: 16 April 2019 Jurisdiction: Class 1 Before: Horton C Decision: See [24] below Catchwords: DEVELOPMENT APPEAL against deemed refusal - conciliation conference – subdivision – residential apartment development – agreement between the parties – orders Legislation Cited: Blacktown Local Environment Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Category: Principal judgment Parties: NAVH Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Solicitors: J Ayas, Madison Marcus (Applicant) D Loether, Bartier Perry (Respondent) File Number(s): 2018/175633 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No SPP-17-00036 for demolition of existing structures, tree removal, Torrens title subdivisions in to 1 super lot (Lot 1) and 1 residue lot (Lot 2) and new public roads, construction of 3 x 4 storey residential flat buildings on Lot 1 with 2 levels of basement car parking, and construction of local roads, drainage and associated landscape works on the land at 22 Grange Avenue, Marsden Park. 2. 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 22 March 2019. I presided over the conciliation conference. 3. At 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 March 2019. 4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 5. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, including a written request prepared by Think Planners pursuant to cl 4.6 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) seeking a variation of the development standard for the height of buildings set out in cl 4.3 of the Growth Centres SEPP. The parties explained to me during the conference as to how the requirements of the Growth Centres SEPP have been satisfied in order to allow the Court to make the orders that follow below.