Salsands (NSW) Pty Ltd v Port Stephens Council

Judgment

1. COMMISSIONER: This is an appeal by Salsands (NSW) Pty Ltd against the determination of Port Stephens Council ("the Council") to grant a deferred commencement consent for the staged development for a business park at 15 Kara Crescent, Taylors Beach, including office premises, a warehouse, café, signage, community title and strata title subdivision, and associated site and structural works. The deferred commencement condition was imposed in Part A of the conditions of development consent, and required the provision of documentary evidence of the granting of a drainage easement over downstream properties to convey the 1% Annual Exceedance Probability ("AEP") stormwater to Council's public drainage system in accordance with Council's Infrastructure Specification. The appeal is lodged pursuant to s 8.7 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 development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] 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 by telephone on 31 March, 9 April, 23 April and 15 May 2020. I presided over the conciliation conference.
3. Following 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 is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application include the subdivision of the site ("Lot 16") into two lots, with proposed Lot 2 to be dedicated as a drainage reserve and Lot 1 remaining as the development lot. The amended development application also incorporates an offer to enter into a Voluntary Planning Agreement ("VPA") for the dedication to the Council of: