appellant. Appeal upheld; development consent granted subject to conditions at Annexure B; applicant ordered to pay respondent's thrown away costs as agreed or assessed pursuant to s 8.15(3) EPA Act.
Key principles
Where parties reach agreement at a conciliation conference conducted under s 34 of the Land and Environment Court Act 1979, and that agreement represents a decision the Court...
The jurisdictional prerequisites for granting development consent under the Environmental Planning and Assessment Act 1979 must be satisfied before the Court can approve a s 34...
For development with frontage to a classified road, cl 2.118 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires that where practicable and...
Where development is of a type sensitive to traffic noise or vehicle emissions, compliance with cl 2.118 of the Transport and Infrastructure SEPP may be achieved through...
Issues before the court
Whether the Court should approve a s 34 agreement reached between parties at a conciliation conference
Whether the proposed development complied with the minimum lot size requirement under cl 4.1 of the Blacktown Local Environmental Plan 2015
Plain English Summary
This case involved a development appeal for a residential subdivision in Quakers Hill. Instead of proceeding to a contested hearing, the parties participated in a conciliation conference and reached agreement on amended plans. The Land and Environment Court approved this agreement and granted development consent without conducting its own independent assessment of the merits, as required by the legislation when parties resolve their dispute through conciliation. The Court verified that all legal requirements for granting consent were satisfied, including minimum lot sizes, access arrangements avoiding a main road, and noise protection measures for future residents.
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Judgment (5 paragraphs)
[1]
Judgment
COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA-21-01660 (the DA) by Blacktown City Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.
Whether the proposal complied with cl 7.9 of BLEP regarding frontage to roads zoned SP2
Whether the proposal complied with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 regarding contaminated land
Cited legislation
No linked legislation citations have been extracted yet.
The DA relates to a 2063 m2 parcel of land which is legally described as Lot 1 in DP879702 and known as 21 Burdekin Road, Quakers Hill, NSW 2763 (the Site). The Site is located on the southern side of Burdekin Road, between the intersections with Jocelyn Boulevarde and Eucra Street. The Site is currently occupied by a single storey dwelling house situated on the southern portion of the Site, setback 7m from the southern boundary and 1m from the eastern boundary. The DA as submitted to Council sought consent for the Torrens Title residential subdivision into four (4) lots including demolition of the existing structures, tree removal, stormwater drainage and associated site works on land legally described as Lot 1 in DP879702 and known as 21 Burdekin Road, Quakers Hill, NSW 2763.
The Development Application was notified by the Respondent for a period of 14 days from 18 October 2021 to 1 November 2021. A total of ten (10) submissions were received. The Amended DA was not required to be renotified under Council's DCP but the amended plans were made available on the Council's website for 14 days. A number of resident objectors also spoke at the conciliation conference. All submissions have been considered by the Respondent and by the Court.
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 17 May 2022, and at which I presided.
On 17 May 2022 and 11 July 2022, the parties participated in a s 34 conference. During the s 34 conference, the parties considered amended plans and material that now resolves the Council's Contentions. The Council, as the relevant consent authority has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant amending the DA in accordance with the amended plans and material listed at Annexure A of the s 34 Agreement (Amended DA).
A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 July 2022.
The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
The main changes between the plans as originally submitted to Council and the Amended Development Application, the subject of the s 34 agreement, are:
1. re-configures the access arrangements for Lot 4 so that all allotments are accessed off the common access handle and the width of the access handle at Kate Place is reduced;
2. improves the landscaping along the battle axe driveway and within the lots;
3. provides further details relating to boundary fences;
4. makes minor adjustments to the battle axe driveway for improved vehicle passing;
5. provides for waste from Lots 1-3 to be collected from Burdekin Road.
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 power under s 4.16 of the EPA Act.
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.
In this case, 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 [12] - [17] below.
[2]
Satisfaction of jurisdiction
The relevant jurisdictional matters in relation to the Blacktown Local Environmental Plan 2015 (BLEP) are:
1. The Site is zoned R2 Low Residential Density under the BLEP and subdivision is permitted with Council's consent.
2. Clause 2.3(2) requires that regard be had to the R2 zone objectives. I am satisfied that Amended Development Application is by its form and nature consistent with the objectives of the zone.
3. Clause 2.7 of BLEP (Demolition) provides that demolition is permissible with consent. To the extent that demolition is proposed, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent.
4. Clause 4.1 of BLEP specifies a minimum lot size of 450 m2 resulting from a subdivision of the Site. All four proposed lots are greater than 450 m2 and therefore comply with cl 4.1 (Lot 1 - 450.5 m2 , Lot 2 - 450.5 m2 , Lot 3 - 456.0 m2 and Lot 4 - 450.1 m2 ).
5. Clause 6.1 of BLEP requires that the consent authority is satisfied that adequate services (water, electricity, sewage disposal and stormwater drainage) are available to the proposed development. From the evidence provided I am satisfied that adequate services are available.
6. Clause 7.9 relates to development with a frontage to certain roads zoned SP2. The Site has a frontage to Burdekin Road, a road within Zone SP2 identified as "Local Road". The consent authority is required to consider whether vehicular access is provided by a road other than a road zoned SP2. The proposal provides for vehicular access to the Site from Kate Place, rather than Burdekin Road. The proposal is accompanied by traffic plans demonstrating preliminary turning paths into the Site. I am satisfied from the evidence that the proposal will not adversely affect the safety, efficiency and ongoing operation of the road, consistent with clause 7.9.
7. The Applicant is the owner of the land and has provided owners consent to lodgement of the DA.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. Based on the Site Contamination Assessment Report prepared by Geotesta dated 26 August 2021, the Site has low risk of soil and groundwater contamination and the site is suitable for the proposed land use. I am therefore satisfied from the evidence that the Site is currently used for residential purposes and is not contaminated and does not adjoin land known to be contaminated.
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the Site. Clause 9.3 of SEPP B&C requires a consent authority to consider the matters referred to in Ch 9. I am satisfied that the matters for consideration under Ch 9 have been adequately addressed in the Statement of Environmental Effects which accompanies the Amended DA.
Clause 2.118 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires that a consent authority must not grant consent to development on land that has a frontage to a classified road unless:
1. where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and
2. the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of -
1. the design of the vehicular access to the land, or
2. the emission of smoke or dust from the development, or
3. the nature, volume or frequency of vehicles using the classified road to gain access to the land, and
1. the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
The proposal provides for vehicular access from Kate Place rather than Burdekin Road. I am satisfied from the evidence that as a residential subdivision for four lots, the proposal will not adversely affect the safety, efficiency and ongoing operation of the road and is consistent with cl 2.118 of the Transport and Infrastructure SEPP
The future development is a development that is of a type sensitive to traffic noise or vehicle emissions. I am satisfied that subject to the conditions in Annexure B the proposed development includes appropriate measures to satisfy cl 2.118 of the Transport and Infrastructure SEPP, in particular, a 1.8 metre high colourbond boundary fence with rubber seals in gaps (refer to drawing LPS34/22-369 Sheet 3 Issue F) and construction of any future dwellings to be in accordance with the acoustic report (condition 14.4.2, Annexure B).
[3]
Conclusion
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.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The Court notes that the parties have reached an agreement in a conciliation conference conducted pursuant to s.34(3) of the Land and Environment Court Act 1979, as to a decision that the Court could have made in the proper exercise of its functions.
The Court notes that the Council, as the relevant consent authority, has agreed pursuant to cl.55 of the EPA Regulation, to amend Development Application DA DA-21-01660, with the amended plans and documents uploaded on the NSW Planning Portal on 7 July 2022 and filed with the Court on 12 July 2022 as described in Annexure A.
[4]
Orders
The Court orders that:
1. Pursuant to s8.15 (3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as agreed or assessed.
2. The appeal is upheld.
3. Development consent is granted to Development Application No. DA-21-01660, for the Torrens Title residential subdivision into four (4) lots including demolition of existing structures, tree removal, stormwater drainage and associated site works on land legally described as Lot 1 in DP879702 and known as 21 Burdekin Road, Quakers Hill, NSW, 2763, subject to the conditions at Annexure B.
[5]
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 2022
Parties
Applicant/Plaintiff:
Universal Property Group Pty Ltd
Respondent/Defendant:
Blacktown City Council
AI Analysis
Outcomeappellant
Disposition:
Appeal upheld; development consent granted subject to conditions at Annexure B; applicant ordered to pay respondent's thrown away costs as agreed or assessed pursuant to s 8.15(3) EPA Act.