Land and Environment Court New South Wales Medium Neutral Citation: Dart West Developments Pty Ltd v Camden Council [2019] NSWLEC 1251 Hearing dates: Conciliation conference on 4 June 2019 Date of orders: 06 June 2019 Decision date: 06 June 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [10] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 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 64—Advertising and Signage State Environmental Planning Policy No 33—Hazardous and Offensive Development Texts Cited: Turner Road Growth Centre Precinct Development Control Plan 2007 Category: Principal judgment Parties: Dart West Developments Pty Ltd (Applicant) Camden Council (Respondent) Representation: Solicitors: A Seton, Marsdens Law Group (Applicant) D Loether, Bartier Perry Lawyers (Respondent) File Number(s): 2018/127440 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 Camden Council's refusal of development application DA/2017/1442/1 ('DA'). Under the DA, the applicant seeks consent for the construction of a service station/convenience store, associated signage including a pylon sign, carparking, landscaping and associated works at 33 Village Circuit Gregory Hills, also known as Lot 3 DP1192118 ('site'). 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 4 June 2019. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 2. 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 certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction I note the following: * I accept the advice of the parties that the application has been properly made. * I note that the proposal is permissible within Zone B1 Neighbourhood Centre State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP GC) and the advice that the proposal does not contravene any development standard. * Having regard to cl 6.1(1) of Appendix 1 of SEPP GC, based on the advice of the parties as to its status, I am satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. * Having regard to cl 6.6(2) of Appendix 1 of SEPP GC, and having regard to the advice of the parties, I note that the site is identified in the Special Areas Map to this SEPP. I further note that, as required, a development control plan that provides for detailed development controls has been prepared for the land (Turner Road Growth Centre Precinct Development Control Plan 2007). * Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), consideration has been given as to whether the subject site is contaminated. I accept the position adopted by Council and the applicant that the subject site is not considered to be contaminated, based on the findings of the following reports which according to the parties were prepared in accordance with the contaminated land planning guidelines: * Turner Road Land Capability and Contamination Assessment, prepared by Douglas Partners, dated 28 February 2007; and * Gregory Hills Town Centre Phase 2 Environmental Contamination Assessment, prepared by Douglas Partners, dated 18 July 2011. * Having regard to State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64), I am satisfied that the proposed signage is consistent with the objectives of SEPP 64 as set out in cl 3(1)(a), and satisfies the assessment criteria specified in Schedule 1 of the SEPP. * Having regard to cl 12 of State Environmental Planning Policy No 33—Hazardous and Offensive Development, I note that a Preliminary Hazard Analysis has been prepared and submitted with the DA. 1. I am satisfied that jurisdictional pre-requisites have been met and 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. 2. 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. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. However, I do note that a factor in coming to the position was an agreed alteration to the service station/convenience store trading hours. 4. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 5. The Court orders: 1. The Applicant is granted leave to rely upon the following further additional plans copies of which are behind Annexure 'A': Drawing references Title Prepared by Date LS10109-E02-1, LS10102-E02-2, LS10106-E02-3 Electrical Services Exterior Lighting Obtrusive Light Analysis Rubidium Light 7 May 2019 1. The Applicant is granted leave to amend the development application with respect of the proposed hours of operation, such that the proposed hours of operation are 5am - midnight 7 day a week, instead of 24 hours 7 days per week. 2. Pursuant to section 8.15(3) of the Environmental Planning Assessment Act 1979 the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application allowed in order (2), as agreed or assessed. 3. The appeal is upheld. 4. Development Application No. DA/2017/1442/1, as amended, for the construction of a service station/convenience store open for operation between 5am and midnight 7 days a week, associated signage including a pylon sign, carparking, landscaping and associated works on Lot 3 in Deposited Plan 1192118 otherwise known as 33 Village Circuit, Gregory Hills, is approved subject to the conditions in Annexure "B". ………………………………. P Walsh Commissioner of the Court Annexure A (5.13 MB, pdf) Annexure B (134 KB, pdf) Approved Plans (1.50 MB, pdf) Approved Landscape Plans (4.91 MB, pdf) ********** 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: 06 June 2019