Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Buddy Wakim (the Applicant) against the actual refusal of their development application DA- 760/2024. The development application, as amended, seeks consent for subdivision, construction of a new access handle, driveways and cross overs, provision of landscaping in the front setback, alterations and building work to an existing building, demolition of an office and construction of a garage, and stormwater services. The development proposed is located at 90-92 Rogers Street, Roselands (Lot 10 DP 785152).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 21 March 2025. Following the conciliation conference, the parties were provided additional time by the court, however the conciliation was ultimately terminated and the matter listed for hearing.

3. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive. The Applicant further amended the development application in June 2025, seeking to address the Respondent's concerns. The parties continued discussions on the amended plans and reached an agreement based on the amended development application. The parties' agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 4 July 2025. I presided over the further conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties agreed resolution: see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]. I form this state of satisfaction on the basis that:

1) The development application is accompanied with the written consent of the owner of the land as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW).

2) Notification of the development application occurred from 31 July 2024 to 14 August 2024. No submissions were received.

3) Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential and warehouse/storage purposes and no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). Further, no excavation works are proposed in the development application. The annexed conditions include the imposition of a condition of consent requiring a hazardous material survey prior to demolition. I find that s 4.6(1) of SEPP RH is satisfied.

4) Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 'Vegetation in Non-Rural Areas' applies to the development application. The proposed development seeks consent for the removal of a single palm tree to facilitate the creation of a new driveway to Proposed Lot 1. Further, planting is proposed in the front setback of the site. The parties agree, and I accept, that the relevant provisions of Ch 2 of the SEPP BC are met.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1980b53c3f75120947d2fbb6)

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