Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1200

Land and Environment Court New South Wales

Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1200 Hearing dates: Conciliation conference on 18 April 2019 Date of orders: 07 May 2019 Decision date: 07 May 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [11] below Catchwords: MODIFICATION OF DEVELOPMENT CONSENT: consent issued by Land and Environment Court – minor error or misdescription – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Solicitors: A Johnson, Swaab (Applicant) L Raffaele, Bartier Perry (Respondent) File Number(s): 2019/98867 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal for modification of conditions (2.1.1 and 2.3.1) as it relates to plans associated with Development Consent of DA-17-00852, issued by the Land and Environment Court, for construction of 115 two multi-dwellings on proposed Lot 1 (for 39 dwellings), Lot 2 (for 39 dwellings) and Lot 3 (for 37 dwellings) with associated infrastructure in subdivision of Lot 6 Section Q in DP712, also known as 124 Cranborne Street, Riverstone. 2. The consent for DA-17-00852 was issued on 12 February 2018 by the Land and Environment Court, by orders of Commissioner Chilcott, in response to a s34 agreement made by the parties, pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act 1979). 3. This Class 1 appeal is made under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). 4. The Court arranged a conciliation conference under s 34(1) of the LEC Act 1979 between the parties, which was held on 18 April 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation. 5. At the conciliation conference for this appeal, the parties had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant modification of the consent for DA-17-00852, and specifically modify condition 2.1.1. The modification of condition: 2.1.1 relates to a change in the date of plans referenced in condition 2.1.1: and 2.3.1 relates to reference to BASIX certificate 821242M_02. As a result of modification to the consent, the reference in condition 2.1.1 is made to the Court as being in receipt of submitted plans. 6. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(8) of the EPA Act 1979 to modify the consent of DA-17-00852. 7. The parties identified the jurisdictional prerequisite of particular relevance in these appeal proceedings, pursuant to s 4.55(1) of the EPA Act 1979, which seeks to correct a minor error/misdescription of conditions (2.1.1 and 2.3.1) of the consent issued by the Court. 8. The parties agree that the modification of condition (2.1.1) of the consent is due to a minor in error/misdescription, which does not result in a change to the development as approved by the Court. There will be no environmental or amenity impacts as a consequence of the proposed modification, and the plans are not required to be re-notified by Council. There are no changes to concurrence requirements of relevant authorities. 9. The parties agree that the content and context of the conditions that the consent rely upon remains unchanged, and therefore the changes to the issued consent is minor and the result of error/misdescription in the conditions attached to the s34 agreement. Therefore, I am satisfied that the modification is consistent with s 4.55(1) of the EPA Act 1979 and the Court has power pursuant to s 4.55(8). 10. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 11. The Court orders: 1. The appeal is upheld. 2. The application to modify Development Application DA-17-00852 (granted by the Land and Environment Court on 12 February 2018 in proceedings 2017/00221053 giving effect to an agreement under s.34(3) of the Land and Environment Court Act 1979) under s.4.55(8) of the Environmental Planning and Assessment Act 1979 is approved. 3. Development Application DA-17-00852 is modified in accordance with the modifications of conditions set out in Annexure 'A'. 4. As a consequence of Order (1) above, Development Application DA-17-00852 is now subject to the consolidated, modified conditions set out in Annexure 'B'.