Land and Environment Court New South Wales Medium Neutral Citation: Kraay v Blacktown City Council [2019] NSWLEC 1420 Hearing dates: Conciliation conference on 30 August 2019 Date of orders: 06 September 2019 Decision date: 06 September 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders: (1) Leave is granted for the Applicant to amend its application to include the modification of conditions 12.7.2.4, 12.7.2.6, 13.8.1.1 and 13.8.2.1 of the consent in accordance with the conditions in Annexure 'A' (2) The appeal is upheld. (3) Modification application no. MOD-19-00106, as amended, which seeks to modify development consent DA-15-1457 (the "Consent") by way of the deletion of deferred commencement condition 1 and modification of conditions 12.7.2.4, 12.7.2.6, 13.8.1.1 and 13.8.2.1, is approved in accordance with the conditions in Annexure 'A'. (4) No order as to costs. Catchwords: MODIFICATION APPEAL – modification application to delete deferred commencement conditions – conditions concerning stormwater drainage - conciliation conference – agreement - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Melody Kraay (Applicant) Blacktown City Council (Respondent) Representation: Solicitors: D G Briggs & Associates (Applicant) Bartier Perry (Respondent) File Number(s): 19/247838 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal concerning a modification application for the deletion of deferred commencement consent conditions that require, inter alia, certain easements for stormwater drainage. The development consent to which the application relates is for the demolition of 5 dwellings and the construction of an integrated housing development at 61-69 Orana Avenue, Seven Hills. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 30 August 2019. I presided over the conciliation conference. 3. At the conciliation conference, 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 was acceptable to the parties. The decision agreed upon was for the grant of the modification application and modification of a number of the conditions of the consent, pursuant to s 4.55(2) of the EPA Act. This outcome was agreed on the basis that an easement has been registered upon Lot 15 in DP 29826, known as 59 Orana Avenue, Seven Hills, in favour of the land the subject of the development consent. Upon the installation of drainage infrastructure within the new easement, stormwater from the development the subject of the consent can be connected to existing drainage infrastructure located on 59 Orana Avenue, Seven Hills. By virtue of s 59A of the Local Government Act 1993, the Council is the owner of that existing drainage infrastructure, which then conveys stormwater through a downstream parcel of land before discharging into a piped drainage system located on adjoining land known as the Bert Oldfield Primary School. The agreed modification to the development consent is to delete the deferred commencement conditions and amend the related operational conditions to ensure that the required easements are subject to terms that require the approval of the Council for them to be varied or extinguished. 4. 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 form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modification is confined to the stormwater drainage for the development. 5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 6. In making the orders to give effect to the agreement between the parties, 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 4.55(3) of the EPA Act. 7. The Court orders that: 1. Leave is granted for the Applicant to amend its application to include the modification of conditions 12.7.2.4, 12.7.2.6, 13.8.1.1 and 13.8.2.1 of the consent in accordance with the conditions in Annexure 'A' 2. The appeal is upheld. 3. Modification application no. MOD-19-00106, as amended, which seeks to modify development consent DA-15-1457 (the "Consent") by way of the deletion of deferred commencement condition 1 and modification of conditions 12.7.2.4, 12.7.2.6, 13.8.1.1 and 13.8.2.1, is approved in accordance with the conditions in Annexure 'A'. 4. No order as to costs. ………………………. J Gray Commissioner of the Court Annexure A (644 KB) ********** 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 September 2019