Orion Consulting Engineers v Blacktown City Council [2020] NSWLEC 1054

Land and Environment Court New South Wales

Medium Neutral Citation: Orion Consulting Engineers v Blacktown City Council [2020] NSWLEC 1054 Hearing dates: Conciliation conference on 12 November 2019; 18 December 2019 Date of orders: 07 February 2020 Decision date: 07 February 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: See orders at [10] below Catchwords: DEVELOPMENT APPLICATION – land subdivision – 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 (Infrastructure) 2007 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: Blacktown Growth Centres Precinct Plan Category: Principal judgment Parties: Orion Consulting Engineers (Applicant) Blacktown City Council (Respondent) Representation: Counsel: D Baird (Solicitor) (Applicant) D Loether (Solicitor) (Respondent)

Solicitors: Baird Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 2019/117159 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council (Council) of Development Application No DA-18-01789 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of EPA Act. 2. The DA principally relates to a 2.062 ha parcel of land identified as Lot 7 DP 30211 at 26 Clarke Street, Riverstone (Lot 7). A narrow strip of the land adjoining to the north west of Lot 7, being a small portion of Lot 6 in DP 30211 at 24 Clarke Street (Lot 6), is also included in the development proposal. The whole of Lot 7 and the small portion of Lot 6 together constitute the development site. 3. The DA, as submitted to Council on 10 September 2018 sought consent for demolition of existing structures and subdivision of Lot 7 into 44 Torrens title residential lots and public roadways, the construction of public roads and various earthworks, site contamination remediation works, tree removal, stormwater drainage works and landscaping. The works located on Lot 6 involve the construction of an earthworks batter and a temporary grass lined diversion swale and inlet pits. 4. On 7 June 2019 leave was granted by the Court to rely on amended plans and other additional information, including an Odour Assessment report, as filed with the Court on that day. The amended set of plans known as the "Revision 02" plans dated 21/03/2019 and other information were to address various concerns raised by Council. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference, held on 12 November and 18 December 2019. By agreement between the parties there was no view of the development site, given that there were no objectors to the DA and there had been prior discussions between the parties regarding the plans. 6. Further minor amendments were made to the plans as a result of the discussions between the parties prior to and at the conciliation conference. Following the conciliation conference the parties reached an agreement based on the final plans as to the terms of a decision in the proceedings that would be acceptable to the parties. 7. 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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [8] below. 8. The relevant jurisdictional matters are: 1. In relation to the provision of land owner's consent required by cl 49 of the Environmental Planning and Assessment Regulation 2000, the applicant has submitted written consent of the land owners of both Lot 6 and Lot 7 to the development proposed on their respective lots. 2. In relation to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and in particular the applicable Appendix 12 to Blacktown Growth Centres Precinct Plan, I am satisfied that the site is zoned R2 Low Density Residential, that subdivision and the other works proposed are permissible with consent and the development complies with the relevant development standards in this planning instrument. 3. In relation to State Environmental Planning Policy No 55 – Remediation of Land ("SEPP 55"), and in particular cl 7(1) and (2), requiring consideration of any contamination and associated remediation, a Stage 2 Detailed Site Investigation report prepared by Alliance Geotechnical Pty Ltd and dated 23 August 2018 was submitted as part of the DA documentation filed with the Class 1 application to the Court. The conditions of consent that accompany the agreement between the parties include conditions consistent with the recommendations of that report and I am therefore satisfied that the requirements of SEPP 55 have been satisfied. 4. In relation to State Environmental Planning Policy (Infrastructure) 2007 ("SEPP Infrastructure") and to any other potential jurisdictional issues, I refer to the following joint submission of the parties made to the Court by email on 24 December 2019: "Upon review of the legislation and Planning Instruments governing the requirements for the grant of Development Consent, the parties agree that there is no requirement for referral to any Department or Federal or State agency for concurrence or further approval as Integrated Development under the relevant legislation. Council referred the application to RMS who confirmed it had no comments for Council's consideration. Council also confirms that as the proposed development is not within 40m of a watercourse, there is no requirement to refer it to [(Natural Resources Access Regulator)] NRAR. Further, given the findings of the [(Archeological)] Due Diligence Assessment Report, no [(Aboriginal Heritage Impact Permit)] AHIP is required." 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' agreement. 2. The Court orders: 1. The Applicant is granted leave to amend Development Application No. DA-18-01789 and to rely upon the following amended plans and documents, copies of which are behind Annexure "A": DOCUMENT PREPARED BY DATED Turn Path Plan, DA-304, Revision 04 Orion Consulting Pty Ltd 8 November 2019 12.5m Heavy Rigid Turning Path Plan, DA-305, Revision 03 Orion Consulting Pty Ltd 18 July 2019 Updated Odour Assessment Todoroski Air Sciences 11 October 2019 Response to Statement of Facts and Contentions (Odour) Astute Environmental Consulting 16 October 2019