Allera Planning Pty Ltd v Blacktown City Council

[2024] NSWLEC 1763

Land and Environment Court

New South Wales

Medium Neutral Citation:

Allera Planning Pty Ltd v Blacktown City Council [2024] NSWLEC 1763

Hearing dates:

Conciliation Conference 12 November 2024

Date of orders:

28 November 2024

Decision date:

28 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA-23-01209, as amended, for the Torrens title subdivision creating 19 lots across two stages on the land at Lot 101 in Deposited Plan 771563, Gardner Street, Rooty Hill, is determined by the grant of consent subject to the conditions at Annexure A.

(3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendments to Development Application No. DA-23-01209 in the agreed amount of $12,000 within 14 days of these orders.

Catchwords:

APPEAL – Development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.12, 6.15, 7.7, 7.13, Pt 7

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11, 8.15

Land and Environment Court Act 1979, ss 17, 34

Biodiversity Conservation Regulation 2017, cl 7.3

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.6, Ch 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Blacktown Local Environmental Plan 2015, cll 2.6, 4.1, 4.1B, 7.5

Blacktown Development Control Plan 2015

Category:

Principal judgment

Parties:

Allera Planning Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
N Hammond (Respondent)

Solicitors:
Colin Biggers and Paisley Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/428809

Publication restriction:

No

Judgment

COMMISSIONER:

Background

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 (DA‑23-01209) (Development Application). The Development Application, as lodged, sought consent for Torrens title subdivision of the land into 19 lots over two stages, tree removal, construction of public roads, stormwater drainage, retaining walls and other associated site works at Lot 101 in Deposited Plan 771563 located at Gardner Street, Rooty Hill (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. The Development Application was lodged with the respondent on 9 October 2023.

4. The Development Application was notified from 8 to 22 November 2023.

5. On 27 November 2023, the proceedings were commenced in relation to 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. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) in May 2024, the matter was listed for hearing on 12 and 13 November 2024.

7. On 9 August 2024, the applicant was granted leave of the Court to formally amend the Development Application. The amendments included:

1. amendments to the configuration of proposed lots 6, 16, 17 and 18;

2. amendments to the road cross section;

3. redesign of the eastern and western boundary retaining walls;

4. consequential reduction in the amount of cut and fill;

5. amended documents and addendum reports – Biodiversity Development Assessment, Aboricultural Impact Assessment, Waste Management Remediation Action Plan, Traffic Noise Assessment and Traffic Impact Assessment; and

6. insertion of additional wording to the end of the description on the Class 1 Appeal form to include “and associated section 148 application under the Roads Act 1993”.

(collectively, the August 2024 Amendments).

8. Upon commencement of the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 12 November 2024, following which the hearing was vacated. I presided over the hearing (to the extent it was commenced) and conciliation conference.

9. The decision agreed upon is for the grant of consent to the Development Application as amended by the August 2024 Amendments and as amended by further agreed amendments (Amended Development Application), subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

10. The further amendments include:

1. reduction in the cut and fill volumes proposed by the development;

2. reduction in the height of the proposed retaining walls;

3. the requirement for building envelope plans for proposed Lots 16, 18 and 19 (being those affected by the Sydney Water easement) by way of condition; and

4. the provision of further and updated stormwater and engineering plans and information.

11. 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

12. 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.

Owners consent

13. The registered proprietor of the Subject Land, LDJ Developments Pty Ltd ATF ADJS Developments Unit Trust, provided consent to the lodging of the Development Application (see tab 6(b) of the Class 1 Application).

Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017

14. A small part of the south-western corner of the Subject Land is mapped on the Biodiversity Conservation Map made pursuant to cl 7.3 of the Biodiversity Conservation Regulation 2017 (BC Regulation).

15. The parties agree that the proposed development is likely to significantly affect threatened species for the purposes of Pt 7 of the Biodiversity Conservation Act 2016 (BC Act) because the proposed clearing of native vegetation on the Subject Land which is included on the Biodiversity Values Map exceeds the biodiversity offsets scheme threshold.

16. A Biodiversity Development Assessment Report (BDAR) prepared by Eco Planning dated 28 February 2024 forms part of the Amended Development Application under s 7.7(2) of the BC Act. The parties agree that the BDAR:

1. was prepared by a suitably accredited person for the purposes of the BC Act who has certified that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as at 28 February 2024 (being the date the BDAR was prepared) as required by s 6.15 of the BC Act;

2. sets out in Pts 5 and 7 the measures that the proponent of the proposed development proposes to take to avoid or minimise, and mitigate, respectively, the impacts of the proposed development on biodiversity values as required by s 6.12(c) of the BC Act; and

3. concludes that a total of three ecosystem credits are required to offset the impacts of the proposed development on Plant Community Type 3320 Cumberland Shale Plains Woodland as required by s 6.12(d) of the BC Act. Condition 4.1 of the Agreed Conditions requires the credits to be retired as required by s 7.13(3) of the BC Act.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. Section 4.6(1) of 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.

18. The Amended Development Application relies on the following reports:

1. Detailed Site Investigation prepared by GeoEnviro Consultancy Pty Ltd dated 31 July 2023 (DSI);

2. Remediation Action Plan prepared by GeoEnviro Consultancy Pty Ltd dated 31 July 2023 (RAP); and

3. Letter from GeoEnviro Consultancy Pty Ltd dated 29 February 2024,

4. (collectively, the Contamination Reports).

19. The parties agree that the requirements of s 4.6 of the RH SEPP have been satisfied on the basis that:

1. the DSI concludes that the Subject Land is contaminated and that remediation, validation and a RAP is required, and that the Subject Land should be suitable for the proposed development with appropriate remediation and validation;

2. the RAP details remediation strategies, the implementation of which will make the Subject Land suitable for the proposed development; and

3. the Agreed Conditions contain various conditions relating to the remediation and validation process.

20. Having regard to the Contamination Reports and agreed conditions of consent (in particular Conditions 8.2, 8.3 and 8.4), I am satisfied that the Subject Land will be suitable for its proposed use before the land is used for that purpose and that the requirements of s 4.6 of the RH SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposed development as the Subject Land is located within the Hawkesbury-Nepean Catchment.

22. Pursuant to s 6.6 of the BC SEPP regarding water quality and quantity, the consent authority must consider the matters listed in s 6.6(1) and be satisfied of the matters listed in s 6.6(2) prior to granting consent. In determining the Amended Development Application, I confirm that I have considered the matters in s 6.6(1) and am satisfied of the matters listed in s 6.6(2) having regard to the Statement of Environmental Effects prepared by Think Beyond (undated) (SEE) and Civil Engineering and Stormwater Plans and supporting Stormwater Infrastructure Letter dated 31 July 2024, which demonstrate that the proposed development can comply with the relevant water quality and quantity targets and confirms that urban runoff would not cause any significant impacts on the catchment area.

Blacktown Local Environmental Plan 2015

23. The Subject Land is zoned R2 Low Density Residential under the Blacktown Local Environmental Plan 2015 (BLEP). Accordingly, the development the subject of the Amended Development Application is permitted with consent in the R2 zone.

24. In determining the Amended Development Application, I have had regard to the R2 zone objectives which are extracted below:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

25. The parties agree that the Amended Development Application is consistent with, or not antipathetic to, the objectives of the R2 zone.

26. The subdivision of land is permissible with consent pursuant to cl 2.6 of the BLEP.

27. Clause 4.1 of the BLEP sets out minimum lot sizes for residential development in the R2 zone. Pursuant to cl 4.1 and the Lot Size Map, the minimum lot subdivision size is 450m². The parties agree that all proposed lots exceed the minimum subdivision lot size and are of sufficient size to accommodate future dual occupancy developments according to the requirements in cl 4.1B(2) of the BLEP (although no such development is proposed by the Amended Development Application).

28. Pursuant to cl 7.5 of the BLEP, a consent authority must not grant development consent to development unless it is satisfied that all services that are essential for the proposed development are available or that adequate arrangements have been made to make those services available when required.

29. The parties agree that the Subject Land is located within an established urban area where water, electricity, sewerage and stormwater drainage are available and capable of being augmented to service the proposed lots. The parties further agree that suitable vehicular access will be provided to the proposed lots by the carrying out of the proposed roadworks.

30. Having regard to the SEE and Agreed Conditions, I am satisfied that the services that are essential for the proposed development the subject of the Amended Development Application are available or adequate arrangements have been made to make that infrastructure available when required in accordance with cl 7.5 of the BLEP.

Blacktown Development Control Plan 2015

31. The parties agree that the provisions of the Blacktown Development Control Plan 2015 have been considered during the assessment of the Amended Development Application.

Remaining matters in section 4.15(1) of the EPA Act

32. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1)(b)-(e) of the EPA Act. Matters relevant to subsections (b), (c) and (e) are considered generally in the SEE (see p 27).

33. In relation to s 4.15(d), the Development Application as lodged was notified between 8 to 22 November 2023. Six submissions were received during the notification period. The matters raised in the submissions primarily related to concerns regarding traffic, waste management, construction impacts, the excessive height of the proposed retaining walls and tree removal.

34. The Development Application (as amended by the August 2024 Amendments) was re-notified for a period of 14 days. One submission was received raising concerns regarding the proposed replacement of the existing boundary fence and the proposed cut and fill.

35. On 6 November 2024, further correspondence was sent to persons who had made a submission advising that the applicant intended to rely upon further amended plans at the hearing, inviting them to make a submission. One submission was received, which raised concerns that proposed lot 16 would have a small building footprint due to the Sydney Water easement and extended cul-de-sac/footpath.

36. I am satisfied that the written submissions received have been taken into consideration and addressed in the assessment and determination of the Amended Development Application.

Conclusion

37. 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.

38. 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.

39. The Court notes that the respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No DA-23-01209 in accordance with the following amended plans and documents:

Drawing Reference No.	Drawing Description	Prepared by	Rev.	Date
Development application Drawings
23-013-DA-C010	Cover sheet	Infrastructure & Development Consulting	H	22 October 2024
23-013-DA-C100	General arrangement plan	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C105	Notes and legends sheet	Infrastructure & Development Consulting	H	22 October 2024
23-013-DA-C106	Staging plan	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C110	Subdivision plan stage 1	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C111	Subdivision plan stage 2	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C120	Sediment and erosion control plan sheet 1	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C130	Cut and fill plan	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C135	Site sections sheet 1	Infrastructure & Development Consulting	H	22 October 2024
23-013-DA-C155	Typical road sections sheet 1	Infrastructure & Development Consulting	G	22 October 2024
23-013-DA-C160	Road alignment control plan and longitudinal sections sheet 1	Infrastructure & Development Consulting	K	29 October 2024
23-013-DA-C200	Siteworks plan sheet 1	Infrastructure & Development Consulting	G	22 October 2024
23-013-DA-C201	Siteworks plan sheet 2	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C202	Siteworks plan sheet 3	Infrastructure & Development Consulting	G	22 October 2024
23-013-DA-C210	Siteworks lot grading plan sheet 1	Infrastructure & Development Consulting	D	29 October 2024
23-013-DA-C250	Retaining wall plan	Infrastructure & Development Consulting	M	29 October 2024
23-013-DA-C300	Stormwater longitudinal sections - sheet 1	Infrastructure & Development Consulting	A	22 October 2024
23-013-DA-C301	Stormwater longitudinal sections - sheet 2	Infrastructure & Development Consulting	A	22 October 2024
23-013-DA-C302	Stormwater longitudinal sections - sheet 3	Infrastructure & Development Consulting	A	22 October 2024
23-013-DA-C303	Stormwater longitudinal sections - sheet 4	Infrastructure & Development Consulting	A	22 October 2024
23-013-DA-C400	Siteworks and stormwater details - sheet 1	Infrastructure & Development Consulting	A	22 October 2024
23-013-DA-C401	Siteworks and stormwater details - sheet 2	Infrastructure & Development Consulting	A	22 October 2024
23-013-DA-C530	DRAINS catchment plan	Infrastructure & Development Consulting	A	22 October 2024
23-013-DA-C600	Signage and linemarking plan sheet 1	Infrastructure & Development Consulting	K	29 October 2024
23-013-DA-C700	Vehicle simulation plan sheet 1	Infrastructure & Development Consulting	L	29 October 2024
23-013-DA-C800	Landscape plan sheet 1	Infrastructure & Development Consulting	M	29 October 2024

40. The above documents were provided to the Court on 12 November 2024.

Orders

41. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA-23-01209, as amended, for the Torrens title subdivision creating 19 lots across two stages on the land at Lot 101 in Deposited Plan 771563, Gardner Street, Rooty Hill, is determined by the grant of consent, subject to the conditions at Annexure A.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendments to Development Application No DA-23-01209 in the agreed amount of $12,000 within 14 days of these orders.

N Targett

Commissioner of the Court

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Annexure A

Decision last updated: 28 November 2024