Australia, June 9 -- New South Wales Land and Environment Court issued text of the following judgement:

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent's deemed refusal of the applicant's development application DA24/0573 (Development Application) for the demolition of an existing structure and the construction of a new two-storey warehouse, land use and erection of a business identification sign on land identified as Lot 61 in Deposited Plan 545276, known as 25 Marhsall Road, Kirrawee (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. For the purposes of this appeal, the Development Application is accepted as being lodged on 13 October 2024.

4. On 6 December 2024, the application was notified for a period of 14 days plus additional time to account for the legislated exclusion period. The notification period ceased on 13 January 2025. No submissions were received in response to the notification.

5. On 20 December 2024, the proceedings were commenced by the applicant against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 6 March 2025 and adjourned on two occasions.

7. During the course of the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Development Application in an amended form, subject to conditions of consent.

8. The agreed amendments to the Development Application include:

1) revising the stormwater management scheme;

2) updating plans to demonstrate additional landscaped area;

3) raising the building by 800mm to facilitate efficient stormwater disposal;

4) relocating skip bins for waste collection;

5) providing a demolition plan; and

6) updating architectural plans,

7) (collectively, the Amended Development Application).

9. The parties provided a signed s 34 agreement supported by a jurisdictional statement on 22 April 2025.

10. 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.

Jurisdictional considerations

11. 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 for the reasons that follow.

Owner's consent

12. The applicant is the registered proprietor of the Subject Land and provided its consent to the lodgement of the Development Application (see Class 1 Application, tab 1).

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1) it has considered whether the land is contaminated; and

2) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

14. A Detailed Site Investigation was prepared by Geotechnique dated 21 March 2025 (DSI) which determined that the Subject Land is likely contaminated, however, can be made suitable for its intended use if remediated in accordance with the Remedial Action Plan prepared by Geotechnique, dated 7 April 2025 (RAP).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196a871b0e8484a68314ed64)

Disclaimer: Curated by HT Syndication.