Land and Environment Court New South Wales Medium Neutral Citation: Smith v Blacktown City Council [2019] NSWLEC 1333 Hearing dates: Conciliation conference on 12 July 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) Leave is granted to amend the Class 1 application to refer only to s 96(1A) (now s 4.55(1A)) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and delete references to s 96(1) (now s 4.55(1)) of the EP&A Act. (2) The appeal is upheld. (3) Approval is granted to modification application MOD-18-00207 in respect of the property at Lot 260 DP 1201857 and Lot 261 DP 1201857, 6-8 Preli Place Quakers Hill, for the retention of the existing dwelling and the construction of three new detached dwellings in the form of 2 sets of dual occupancies with Torrens title subdivision into 4 residential lots with Lot 3 designated for affordable rental housing under State Environmental Planning Policy (SEPP) 2009 Affordable Rental Housing Scheme, subject to conditions set out in Annexure A. (4) Each party is to bear its own costs of the proceedings (except for the existing costs order). Catchwords: MODIFICATION APPLICATION – changes to nominated affordable housing units – amendment to covenant – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Texts Cited: Blacktown Development Control Plan 2015 Category: Principal judgment Parties: Robert Smith (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J McKelvey (Respondent) Solicitors: A Johnstone, Connor & Co Lawyers (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 2018/289603 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of its modification application MOD-18-00207. The original development application (DA-17-00186) sought consent for two dual occupancies on 6-8 Preli Place, Quakers Hill. 2. On 11 May 2018, the Applicant lodged the modification application to amend the development consent to vary the conditions requiring all four dwellings to be designated as affordable rental housing under cl 17 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 12 July 2019. 5. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.55(1A) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. I am satisfied that the modification, now sought only under s 4.55(1A) of the EPA Act, is of minimal environmental impact. 2. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. 3. I am satisfied that the provisions of cl 117 of the Environmental Planning and Assessment Regulation 2000 are satisfied. I am persuaded by the agreed submission of the parties that notification of the modification application was not required pursuant to cl 3.7 of Blacktown Development Control Plan 2015 (DCP 2015) as there are no relevant 'affected persons' (as defined at cl 3.2 of DCP 2015). 4. Pursuant to s 4.55(3) of the EPA Act, I have taken into consideration the matters of relevance to the application under s 4.15(1) of the EPA Act and the reasons given by the consent authority for the grant of consent. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. Leave is granted to amend the Class 1 application to refer only to s 96(1A) (now s 4.55(1A)) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and delete references to s 96(1) (now s 4.55(1)) of the EP&A Act. 2. The appeal is upheld. 3. Approval is granted to modification application MOD-18-00207 in respect of the property at Lot 260 DP 1201857 and Lot 261 DP 1201857, 6-8 Preli Place Quakers Hill, for the retention of the existing dwelling and the construction of three new detached dwellings in the form of 2 sets of dual occupancies with Torrens title subdivision into 4 residential lots with Lot 3 designated for affordable rental housing under State Environmental Planning Policy (SEPP) 2009 Affordable Rental Housing Scheme, subject to conditions set out in Annexure A. 4. Each party is to bear its own costs of the proceedings (except for the existing costs order). ………………………… D M Dickson Commissioner of the Court Annexure A (15.5 KB, 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: 16 July 2019