Land and Environment Court New South Wales Medium Neutral Citation: Menangle Park 1 Pty Ltd v Campbelltown City Council [2019] NSWLEC 1198 Hearing dates: Conciliation conference on 1 May 2019 Date of orders: 07 May 2019 Decision date: 07 May 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [15] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders Legislation Cited: Campbelltown Local Environmental Plan 2015 Coal Mine Subsidence Compensation Act 2017 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Menangle Park 1 Pty Ltd (Applicant) Campbelltown City Council (Respondent) Representation: Solicitors: C Rose, Swaab (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2018/221745 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the Respondent's deemed refusal of development application 1580/2018/DA-SW ('DA'). The DA sought consent for land 'subdivision', development for the purposes of 'roads' and associated work. The development would principally occur on land identified as: * Lot A DP 364350 (26 Fitzpatrick Street, Menangle Park); * Lot 52 DP 10718 (12 Fitzpatrick Street, Menangle Park); * Lot 57 DP 10718 (111 Cummins Road, Menangle Park);and * Lot 58 DP 10718 (121 Cummins Road, Menangle Park). But in addition the DA proposes works, such as half-road construction over or along four (4) adjoining properties, being: * Lot 48 DP 10718 (202 Racecourse Avenue) * Lot B DP 364350 (36 Fitzpatrick Street); * Lot 55 DP 10718 (46 Fitzpatrick Street); and * Lot 56 DP 1102480 (46 Fitzpatrick Street). The land to which the DA relates includes all of the above properties. Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 1 May 2019. I presided over the conciliation conference, which commenced on site, hearing lay submissions, then proceeded back to Campbelltown Council offices. 2. At the conciliation conference, the parties evidenced 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. 3. 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. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied. Jurisdiction 1. I accept the advice of the parties that the DA was properly made, including in regard to consent of the owners for each of the parcels comprising the land to which the DA relates. 2. I accept that the development is permissible. Campbelltown Local Environmental Plan 2015 (CLEP 2015) applies to the land. Under cl 2.6 of CLEP 2015, land may be subdivided with development consent. The land to which the development application relates is within Zone R2 – Low Density Residential under the provisions of CLEP 2015, and development for the purpose of a 'road' is permitted with consent in the Land Use Table after Part 2 of CLEP 2015. 3. I accept that the development does not contravene any development standard in CLEP 2015, or any other applicable environmental planning instrument. 4. The Secretary has certified in writing to the Respondent that satisfactory arrangements have been made to contribute to the provision of State public infrastructure in relation to the land to which the development application relates, as required by cl 6.1 of CLEP 2015. 5. I accept that the public utility infrastructure referred to in cl 6.2 of CLEP 2015 is available or adequate arrangements have been made to make it available when required. 6. I accept the advice of the parties that, in relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), the land on which the development is proposed to be carried out (to the extent to which investigation was possible) is not contaminated. The parties advise that due to access restrictions soils underlying existing dwellings and sheds were not tested as part of the Detailed Site Investigation undertaken. Notwithstanding this, if additional investigations undertaken, post demolition, reveal that the site is contaminated, the parties agree that the site can be made suitable for the the purpose for which the development is proposed to be carried out following remediation. I am satisfied with this position mindful of the parties reliance on the conclusions contained in the Detailed Site Investigation and Preliminary Site Investigation prepared by Martens Consulting Engineers dated April 2018. Appropriate consent conditions are proposed. I am satisfied that the requirements of cl 7 of SEPP 55 are addressed. 7. I understand the site is affected by the Coal Mine Subsidence Compensation Act 2017. The parties advise that prior to the amendments to the proposal which came about as a consequence of the conciliation process between the parties, the proposal had received the relevant General Terms of Approval (under s 4.47(2) of the EPA Act) from the NSW Subsidence Advisory Board. The revised layout will require a new set of General Terms of Approval. The agreement proposes a deferred commencement consent (under s 4.16(3) of the EPA Act), whereby the consent would only become operational when this occurs. The Court has the power to issue a consent to this effect. I have considered the original General Terms of Approval, and the changes to the plans proposed as a consequence of the conciliation. I have no reason to believe new terms would not be able to issue for the amended plans. In regard to this question it is both within jurisdiction and reasonable for the deferred commencement consent to be issued in accordance with the agreement of the parties. 8. On the basis of the above, 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. 9. 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. I note that in this instance the Court is not required to give consideration to the individual merits issues in relation to the matter. 10. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans: Plan No. Revision Prepared by Date Plan of Proposed Subdivision G Australian Survey Solution 27/11/18 Cover Sheet I (R09) Martens & Associates 12/04/2019 PS02-A000 Development Overview & Viewport Reference Plan G (R09) Martens & Associates 10/04/2019 PS02-A050 Sediment and Erosion Control Plan F (R09) Martens & Associates 10/04/2019 PS02-B300 Sediment and Erosion Control Details C (R09) Martens & Associates 18/12/2018 PS02-B310 Earthworks Grading Plan (Viewport 1) G (R09) Martens & Associates 10/04/2019 PS02-C100 Earthworks Grading Plan (Viewport 2) F (R09) Martens & Associates 01/04/2019 PS02-C110 Earthworks Cut-Fill Plan (Viewport 1) G (R09) Martens & Associates 10/04/2019 PS02-C500 Earthworks Cut-Fill Plan (Viewport 2) F (R09) Martens & Associates 01/04/2019 PS02-C510 Earthworks Site Section A E (R09) Martens & Associates 10/04/2019 PS02-C600 Earthworks Site Section B E (R09) Martens & Associates 12/04/2019 PS02-C601 Roadworks Plan (Viewport 1) H (R09) Martens & Associates 10/04/2019 PS02-D100 Roadworks Plan (Viewport 2) G (R09) Martens & Associates 01/04/2019 PS02-D110 Proposed Road 1 (21-MRC01) Longitudinal and Typical Cross Sections F (R09) Martens & Associates 10/04/2019 PS02-D200 Proposed Road 2 (21-MRC02) Longitudinal and Typical Cross Sections E (R09) Martens & Associates 01/04/2019 PS02-D205 Proposed Road 3 (21-MRC03) Longitudinal and Typical Cross Sections F (R09) Martens & Associates 10/04/2019 PS02-D210 Proposed Road 4 (21-MRC04) Longitudinal and Typical Cross Sections E (R09) Martens & Associates 01/04/2019 PS02-D215 Fitzpatrick Street (21-MRC05) Longitudinal and Typical Cross Sections C (R09) Martens & Associates 10/04/2019 PS02-D220 Temporary Turning Head Swept Path Analysis for 12.5m HRV Service Vehicle D (R09) Martens & Associates 01/04/2019 PS02-DZ00 Drainage Plan (Viewport 1) G (R09) Martens & Associates 10/04/2019 PS02-E100 Drainage Plan (Viewport 2) E (R09) Martens & Associates 10/04/2019 PS02-E101 Drainage Details Sheet 01 F (R09) Martens & Associates 12/04/2019 PS02-E200 Drainage Details Sheet 02 B (R09) Martens & Associates 01/04/2019 PS02-E201 Drainage Details Sheet 03 C (R09) Martens & Associates 10/04/2019 PS02-E202 Drainage Details Sheet 04 A (R09) Martens & Associates 01/04/2019 PS02-E203 On-Site Detention Catchment Plan, Model and Results F (R09) Martens & Associates 12/04/2019 PS02-E600 Water Quality Catchment Plan, Model and Results E (R09) Martens & Associates 10/04/2019 PS02-E700 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $6800 within 14 days of the date of these orders. 2. The appeal is upheld. 3. Development Application No. 1580/2018/DA-SW, for the demolition of existing structures and clearing of existing vegetation, subdivision to create 61 lots, and construction of temporary bio retention basins, roads, pedestrian footpaths stormwater infrastructure and associated landscape works on the land at: 1. 12 Fitzpatrick Street (Lot 52 DP 10718); 2. 26 Fitzpatrick Street (Lot A DP 364350); 3. 111 Cummins Road (Lot 58 DP 10718); 4. 121 Cummins Road (Lot 57 DP 10718); 5. 202 Racecourse Avenue (Lot 48 DP 10718); 6. 36 Fitzpatrick Street (Lot B DP 364350); 7. 46 Fitzpatrick Street (Lot 55 DP 10718); and 8. 46 Fitzpatrick Street (Lot 56 DP 1102480). subject to the conditions of consent annexed hereto and marked "A". …………………………. P Walsh Commissioner of the Court Annexure A ********** 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: 07 May 2019