Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Limited v Blacktown City Council [2019] NSWLEC 1304 Hearing dates: Conciliation conference on 31 May 2019 Date of orders: 28 June 2019 Decision date: 28 June 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [11] 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 No 55—Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Category: Principal judgment Parties: Universal Property Group Pty Limited (Applicant) Blacktown City Council (Respondent) Representation: Counsel: M Staunton (Applicant) Solicitors: Swaab (Applicant) L Raffaele, Bartier Perry (Respondents) File Number(s): 2018/324005 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 Blacktown City Council's deemed refusal of development application DA-18-01783 ('DA'). 2. Pursuant to the parties' s34 Agreement, the Applicant seeks leave to rely on amended plans and material. Under the DA as amended, the Applicant seeks consent for the subdivision of three allotments into 91 Torrens Title lots, the removal of trees, the erection of 28 multi dwelling housing dwellings on proposed Lot 92, construction of roads and stormwater drainage work at Lot 2 DP 846728 and Lots 4 and 5 DP 837354 known as 125, 129 and 137 Burdekin Road, Quakers Hill (the 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 31 May 2019. After the conciliation conference, the parties came to 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, that it is permissible and does not breach any development standards contained in Appendix 4 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP GC). * Having regard to cl 6.1(1) of Appendix 4 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 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 am advised that the Applicant commissioned a Contamination Site Investigation Report prepared by Geotesta Pty Ltd on 5 July 2018. Based on Council's view that the requirements of cl 7 of SEPP 55 are satisfied having considered this report, I am also satisfied in this regard. 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. 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 amend its development application to: 1. rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural Plans DA00, Rev 3 Cover Page The Bathla Group 3 June 2019 The Bathla Group DA01, Rev 3 Site Analysis 3 June 2019 DA02, Rev 3 Subdivision Plan 3 June 2019 DA03, Rev 3 Building Envelope Plan 3 June 2019 DA04, Rev 3 Site Plan (Townhouse) 3 June 2019 DA05, Rev 3 Ground Floor Plan (Townhouse) 3 June 2019 DA06, Rev 3 First Floor Plan (Townhouse) 3 June 2019 DA07, Rev 3 Elevation & Section 3 June 2019 DA08, Rev 3 Shadow Analysis – June 21st 3 June 2019 Drawing CS-1 Site Plan - Colour Schedule May 2019 Issue B Colour Schedule 17 May 2019 Colour Schemes 17 May 2019 DA-09, Rev 1 Shadow Analysis 15 May 2019 Landscaping plan LP01/01, Rev 03 Landscape Plan The Bathla Group 3 June 2019 Engineering Plans 000, Rev 02 Cover Sheet Orion Consulting Engineers Undated 001, Rev 02 General Layout Plan, Notes & Legend 27 May 2019 002, Rev 02 Demolition & Tree Removal Plan 003, Rev 02 Site Regrading Plan 004, Rev 02 Site Sections Sheet 01 of 03 005, Rev 02 Site Sections Sheet 02 of 03 006, Rev 02 Site Sections Sheet 03 of 03 100, Rev 02 Sediment and Erosion Control Plan 101, Rev 02 Sediment Control Details & Notes 200, Rev 02 Engineering Plan 201, Rev 02 Finished Floor Level Plan – Torrens Titled Lots 202, Rev 02 Finished Floor Level Plan – Strata Titled Lots 300, Rev 02 Road Long Section Sheet 01 of 03 301, Rev 02 Road Long Section Sheet 02 of 03 302, Rev 02 Road Long Section Sheet 03 of 03 303, Rev 02 Turnpath Plan 400, Rev 02 Temporary Basin Catchment Plan 401, Rev 02 External Catchment Plan 402, Rev 02 Drainage Long Section Sheet 01 of 04 403, Rev 02 Drainage Long Section Sheet 02 of 04 403A, Rev 02 Drainage Long Section Sheet 03 of 04 403B, Rev 02 Drainage Long Section Sheet 04 of 04 404, Rev 02 Temporary Basin No.1 Plan & Details 1. rely on the following material: Document Title Prepared by Date Statement of Environmental Effects Universal Property Group June 2019 Waste Management Plan Universal Property Group May 2019 1. The Applicant is to pay the Respondent's costs as agreed or assessed arising under s 8.15(3) of the Environment Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Consent is granted to DA-18- 01783 for the subdivision of three allotments into 88 Torrens title lots and 4 residue lots including site works, roads, stormwater drainage and the removal of trees, and the erection of 28 multi dwelling housing dwellings on proposed Lot 92, construction of roads and stormwater drainage work at Lot 2 DP 846728 and Lots 4 and 5 DP 837354 known as 125, 129 and 137 Burdekin Road, Quakers Hill, in accordance with the conditions set out in Annexure 'A'. ………………………… P Walsh Commissioner of the Court Annexure A (225 KB, pdf) Selected Plans (4.38 MB, pdf) ********** Amendments 04 July 2019 - Selected Plans Uploaded to Judgment 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: 04 July 2019