Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1460 Hearing dates: Conciliation conference on 9 August 2019; 19 August 2019 Date of orders: 02 October 2019 Decision date: 02 October 2019 Jurisdiction: Class 1 Before: Bindon AC Decision: See [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 Rural Fires Act 1997 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55–Remediation of Land Texts Cited: Blue Mountains Development Control Plan 2015 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: M Staunton (Applicant) T O'Connor (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Houston Dearn O'Connor (Respondent) File Number(s): 2018/375984 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council (Council) of Development Application No DA-18-01176. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The development application (DA) relates to land identified as Lot 4 DP 1202472 and Lot 45 DP 262886 at 25-51 Glengarrie Road Marsden Park (the site). The DA, as originally submitted to Council on 5 July 2018, seeks approval for the subdivision of "Stage 2 Block A residue lot 1" (the residue lot), as approved by the Court under DA-17-01094 on 28 December 2017, into thirty-one (31) Torrens Title lots. The residue lot has an area of 8,110 m². 3. The Court arranged a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 August 2019 and 19 August 2019. I have presided over the conciliation conference. 4. As a result of the conciliation conference the DA plans were amended, and after the conciliation conference the parties reached agreement, based on those amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The main change between the plans as originally submitted and the plans that are the subject of the s 34 agreement is a reduction in the number of lots from 31 to 29 and the containment of all engineering works within the site. 5. The agreement reached between the parties involves the Court upholding the appeal and granting development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 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, which are addressed in [6] to [8] below. 6. The main planning instrument applying to the site is State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) and in particular the Marsden Park Precinct, to which the provisions of Appendix 12 Blacktown Growth Centres Precinct Plan apply. Under the Growth Centres SEPP the site is zoned part R2 Low Density Residential, part RE1 Public Recreation and part SP2 Local Road. The subdivision of land and associated engineering works are permissible with consent. A minimum dwelling density of 15 dwellings per hectare applies. As the residue lot has an area of 8,110 m² and 29 lots are to be created this provision of the Growth Centres SEPP is satisfied. 7. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) also applies. In this respect a Site Contamination Assessment has been provided with the DA. Based on the history of the site the Contaminated Assessment concludes that the land is unlikely to be contaminated and it is therefore suitable for residential use. 8. The development is classified as integrated development pursuant to s 4.46 of the EPA Act, requiring approval from the Rural Fire Service (RFS) under the provisions of s 100B of the Rural Fires Act 1997 in respect of bush fire safety of subdivision of land that could lawfully be used for residential purposes. The DA was referred by Council to the RFS and RFS concurrence has been granted subject to conditions. Those conditions have been incorporated into the agreed set of conditions. 9. As I am satisfied that 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. 10. The Court orders: 1. The Applicant is granted leave to amend its development application to: 1. rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural Plans DA01, Rev 5 Site Analysis The Bathla Group 15 August 2019 DA02, Rev 5 Subdivision & Building Envelope Plan DA03, Rev 2 Street Tree Plantation Engineering Plans Sheet No. 1, Rev C Cover Sheet Pulver Cooper & Blackley 21 August 2019 Sheet No. 2, Rev C Index Plan Sheet No. 3, Rev C General Arrangement Plan Sheet No. 4, Rev C Long Section Road 1 Sheet No. 5, Rev C Cross Sections Road 1 Sheet No. 6, Rev C Cross Sections Road 1 Sheet No. 7, Rev C Cross Sections Road 1 Sheet No. 8, Rev C Cross Sections Road 1 Sheet No. 9, Rev C Regrade Sections Sheet No. 10, Rev C Regrade Sections Sheet No. 11, Rev C Bulk Earthworks Plan Sheet No. 12, Rev C Catchment Plan 1. rely on the following material: Document Title Prepared by Date Bushfire Protection Assessment Report (referenced 18BATH14) Travers Bushfire and Ecology 2 August 2019 mistakenly dated 2 August 2018 1. The appeal is upheld. 2. Consent is granted to DA-18-01176, for the subdivision of residue lot 1 approved under DA-17-01094 into twenty nine (29) Torrens title lots and associated engineering works at land known as 25-51 Glengarrie Road, Marsden Park (legally described as Lot 4 DP 1202472 and Lot 45 DP 262886), in accordance with the conditions set out in Annexure 'A'. ………………………. J Bindon Acting Commissioner of the Court Annexure A (360 KB) Subdivision Plans (3.12 MB) Engineering plans (14.0 MB) ********** Amendments 09 October 2019 - Wrong case previously used for this MNC 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: 09 October 2019