Ankira Projects Croatia Avenue Pty Ltd v Campbelltown City Council

[2022] NSWLEC 1627

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ankira Projects Croatia Avenue Pty Ltd v Campbelltown City Council [2022] NSWLEC 1627

Hearing dates:

Conciliation conference on 22 August 2022, 26 August 2022, 8 September 2022, 13 September 2022, 15 September 2022, 6 October 2022, 20 October 2022.

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Consent is granted to Development Application DA 2130/2020-SW (as amended) for the subdivision to create 12 residential allotments, temporary stormwater management facility, vegetation removal, road drainage, services and retaining wall works at the property being Lot 101 in Deposited Plan 1259735 known as 308 Bensley Road, Ingleburn, NSW 2565 subject to the conditions set out in Annexure A.

(3) The Applicant to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 , as agreed or assessed.

Catchwords:

DEVELOPMENT APPLICATION - subdivision – vegetation removal and restoration – ongoing vegetation management – temporary stormwater management facility, biodiversity management and offsets - conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016 ss , 6.12, 7.13

Biodiversity Conservation Regulation 2017 Pt 7

Campbelltown Local Environmental Plan 2015 cll 2.3, 2.6, 4.1, 4.12, 7.1, 7.4, 7.10, 7.20

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 4.17, 4.46, 4.47, 8.7, 8.11, 8.15

Environmental Planning and Assessment Regulation 2000 cl 55

Environmental Planning and Assessment Regulation 2021 Sch 6 Pt 1 cl 2

Land and Environment Court Act 1979 ss 17, 34

Rural Fires Act 1997 s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chapters 3, 4, Pt 6, Pt 7, cll 11.6, 11.7

State Environmental Planning Policy (Hazards and Resilience) 2021 cl 4.6

State Environmental Planning Policy (Koala Habitat Protection) 2021

Texts Cited:

Campbelltown Development Control Plan 2015

Campbelltown Comprehensive Koala Plan of Management 2018

Planning for Bushfire Protection 2019

Category:

Principal judgment

Parties:

Ankira Projects Croatia Avenue Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Storey and Gough Lawyers(Applicant)
HWL Ebsworths Lawyers (Respondent)

File Number(s):

2021/187251

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to Development Application DA 2130/2020/DA-SW (Development Application) being an application lodged by Ankira Projects Croatia Avenue Pty Ltd (Ankira) with Campbelltown City Council (Council) on 23 July 2019 seeking development consent for subdivision to create 13 residential lots, 1 future residential lot, removal of 84 trees and preservation of 118 trees plus 1 identified group of trees, vegetation removal, vegetation restoration and ongoing vegetation management, subdivision infrastructure works, road dedication, temporary stormwater management facility, drainage works, biodiversity management and offsets in relation to Lot 101 in Deposited Plan 1259735 being land known as 308 Bensley Road, Ingleburn, NSW (the Site).

2. The Site is located on the eastern fringe of Ingleburn. Bensley Road runs parallel with the Georges River basin and connects Ingleburn to Macquarie Fields. An area on the western side of Bensley Road has been identified for redevelopment and is known as the Caledonia Precinct. Ankira seeks development consent for the subdivision of one of the lots within that precinct, known as Lot 101 in DP 1259735. The development application was lodged with the Council on 14 July 2020. Following the expiry of the period after which a development application is deemed to be refused pursuant to s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) Ankira lodged an appeal pursuant to s 8.7 of the EPA Act.

3. The proceedings fall within Class 1 of the court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The Site is rectangular in shape with a total area of 14,210m² and has a frontage of 80.435m to Bensley Road. It levels vary from RL63 to RL73 generally from north-east to south-west.

5. The Site is vacant land and presently only contains a driveway. The Site contains 0.435ha of native vegetation, comprising critically endangered Cumberland Plain Woodland (CPW). Some of the native vegetation on the Site is mapped as “significant vegetation” on Council’s Terrestrial Biodiversity Map under the Campbelltown Local Environmental Plan 2015 (CLEP 2015): below:

Figure 1 from Council’s Amended Statement of Facts and Contentions filed 22 December 2021 (SOFAC) being an Extract of Terrestrial Biodiversity Map (Terrestrial Biodiversity Map – Sheet B10-012A) showing significant vegetation in green and the Site shaded in blue.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 22 August 2022, 26 August 2022, 8 September 2022, 13 September 2022, 15 September 2022, 6 October 2022 and 20 October 2022. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting consent to the Development Application subject to the conditions in Annexure A.

8. Under s 34(3)(a) and (b) 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 involved the Court exercising the function under s 4.16(1)(a) of the EPA Act to uphold the appeal and grant consent subject to conditions. There are jurisdictional prerequisites that must be satisfied before the function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out below and explained how the jurisdictional prerequisites have been satisfied.

1. The Site is owned by Ankira. For the purposes of s 4.12 of the EPA Act and cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the owners’ consent to the making of the Development Application is included with the Development Application. The Environmental Planning and Assessment Regulation 2021 commenced on 1 March 2022, and the EPA Regulation was repealed, except for the Savings provision in Sch 6, Pt 1 cl 2 which provides that the EPA Regulation should apply to any development application lodged prior to 1 March 2022.

Section 4.15(1)(a)(i) of the EPA Act – the provision of relevant environmental planning instruments

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP): has been considered as follows:

3. Biodiversity SEPP – Chapter 4 – Koala Habitat Protection

1. Chapter 3 of the Biodiversity SEPP applies to the Site as it is land located within the Campbelltown Local Government area.

2. The Site was assessed against the former State Environmental Planning Policy (Koala Habitat Protection) 2021 and a Koala Plan of Management (KPOM) was prepared at Council’s request. The Site includes potential core Koala habitat, Koala feed trees and because the Site is on the fringe of extensive areas of Koala habitat to the east and south, the site could be used for transient individual koalas. There are numerous Koala records around the Site and within the locality. The site is considered potentially part of the much larger area of ‘core Koala habitat’.

3. The Koala Habitat Assessment Report (KHAR) by Ecoplanning dated 28 August 2022 assesses all impacts to koala habitat and preferred koala food trees consistent with the requirements of the approved Campbelltown Comprehensive Koala Plan of Management 2018.

4. Recommendation is made in the KHAR that the subject Site is provided with Koala-proof fencing to prevent access and protect Koalas from potential dog attack in residential areas. The amended subdivision layout also results in greater retention of potential koala habitat. The KHAR also recommends "koala friendly" fencing in certain localities s and requires that future development provide for koala proof and koala friendly fencing as well as devices to enable koalas to exit from backyards and pools to be secured on title of the future lots. The proposed conditions of consent provide a mechanism in the registration of legal instruments to offset the KHAR recommendations. The amended subdivision layout also results in greater retention of potential Koala habitat.

5. The Court would be satisfied on the basis of the above information that the Council has taken into consideration the requirements under Chapter 4 of the Biodiversity SEPP.

4. Biodiversity SEPP – Chapter 11 – Georges River Catchment

1. The Site is located within the catchment draining to the Georges River system and as such the provisions of Chapter 11 (Georges River Catchment) apply. The broad aim of the Chapter is to ensure the impact of urban development on the Georges River is minimised by considering catchment management, water quality and quantity, and protection and management of environmentally sensitive areas, flora and fauna and wetland habitats.

2. Clauses 11.6 and 11.7 of Chapter 11 of the Biodiversity SEPP set out the “general” and “specific” planning principles that need to be applied and considered by Court when assessing a development application.

3. In this case the land has already been rezoned by Council which prepared the indicative layout plan of the road pattern and regional stormwater management facilities. As this development is to occur before the regional stormwater management facilities will be operational, a temporary OSD and Raingarden Basin is proposed to address all stormwater flows from the development. The temporary basin will improve water quality and restrict flows to pre-development levels in storm events to the 1% AEP.

4. A Stage 1 Preliminary Site Investigation and Preliminary Salinity Assessment of the site by Alliance Geotechnical dated 27 November 2017, report no. 6050-ER-1-1, Rev 0 (Alliance Report 27/11/17) confirmed that the soils are non-saline. The proposed subdivision otherwise provides appropriate soil and water management control measures which will be implemented on site prior to commencement of civil works to minimise the cumulative impacts upon the Georges River catchment area.

5. State Environmental Planning Policy (Hazards and Resilience) SEPP 2021 (Resilience SEPP) has been considered as follows:

1. Clause 4.6(1) of the Resilience 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.

2. Relevant matters concerning the issue of contamination and cl 4.6(1) of the Resilience SEPP are detailed in the Alliance Report 27/11/17 and provided with the Class 1 Application. The amended subdivision layout does not alter the findings of these assessments which found the Site suitable for residential development.

6. State Environmental Planning Policy (Planning Systems) 2021 does not apply as the Development Application is not:

1. identified as State Significant Development;

2. involve State Significant Infrastructure or critical State Significant Infrastructure; and

3. identified as regionally significant development.

7. State Environmental Planning Policy (Infrastructure) 2007 (which would be applicable before the Development Application was lodged with Council prior to the making of State Environmental Planning Policy (Transport and Infrastructure) 2021 by virtue of the savings and transitional provisions): does not apply as the Development Application does not involve:

1. works that involve undergrounding of electricity power lines; or

2. works within an easement for electricity purposes or within 5 metres of an exposed overhead power line.

3. The proposed number of lots is 12 (that is less than 200) so does not reach the threshold for referral to Transport for NSW and no further consideration of traffic generation is required.

8. The parties considered CLEP 2015 as follows:

1. Clause 2.3 – Land use zoning

1. The site is zoned part R2 Low Density Residential and Part R5 Large Lot Residential.

2. The principal objective of the R2 zoning is to provide for the housing needs of the community within a low-density residential environment. The proposal is consistent with the objectives and will create a mix of lot sizes in a low-density environment.

3. The principal objective of the R5 zoning is to provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.

4. Lot 312 is primarily zoned R5 and will become a rural residential property upon removal of the temporary OSD basin. The lot will have covenants imposed pertaining to the removal of the basin and protection of the trees under a Vegetation Management Plan (VMP). Although containing the temporary basin, the retention of trees within this proposed lot will enable tree preservation under the VMP in accordance with the objectives of the zone.

5. The Court would be satisfied that the proposed development is consistent with the objectives of the zones.

2. Clause 4.1 – Minimum subdivision lot size

1. The subdivision of land is permissible with development consent pursuant to cl 2.6 of the CLEP 2015.

2. Pursuant to cl 4.1, the size of any lot resulting from a subdivision of land to which cl 4.1 applies is not to be less than the minimum size shown on the Lot Size map in relation to that land. The minimum Lot size for R2 land is 500m² and for R5 land, 2000m². Lots 301 to 311 are between 500m² and 972.6m2 and proposed Lot 312 is 3325m2 and therefore comply with the minimum lot sizes.

3. The Court would be satisfied that the lots in the proposed development comply with the minimum Subdivision Lot Size control set out in cl 4.1 of the CLEP 2015.

3. Clause 7.1 – Earthworks

1. The proposal includes the carrying out of earthworks to form the roads and drainage structures detailed in the civil works plans appended to this application. The earthworks will not require the importation of fill from external sites. All required protection measures will be implemented to ensure that soils do not migrate off site during and after construction.

2. The Court would be satisfied on the basis of the engineering drawings and included in the conditions that there are appropriate mechanisms in place to ensure satisfaction with the requirements of cl 7.1 of the CLEP 2015.

4. Clause 7.4 – Salinity

1. A preliminary soil salinity assessment of the site by Alliance Geotechnical (Alliance Report 27/11/17) confirmed that the soils are non-saline.

5. Clause 7.10 – Essential services

1. Pursuant to cl 7.10 of the CLEP 2015, development consent must not be granted unless the consent authority is satisfied that services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required.

2. The existing Lot 100 is currently serviced with the relevant NSW Government Authority for water, electricity and communications and private wastewater treatment system. The existing services to that lot will be maintained until alternative points of connection are provided in conjunction with the subject development. Once available the points of connection will be transferred to the new systems and the existing services through the development site will be removed

3. The site falls within an area managed by Sydney Water. Sydney Water has issued their Notice of Anticipated Requirements dated 10 December 2021 to facilitate a Section 73 Certificate. In particular, servicing of the subdivision is dependent upon the satisfactory completion, commissioning and handover of assets to be delivered by the developer of neighbouring Ingleburn Gardens development (Refer CN 175878). In this regard, an Options Assessment -Value Options Report has been prepared by GHD and endorsed by Sydney Water for the delivery of this infrastructure. Further, on 19 August 2022, Development Consent DA No. 3866/2021/DA-O was granted for the construction of a below ground sewerage pumping station. Accordingly, adequate arrangements are in place for the availability of the required water and sewer reticulation mains.

4. In relation to drainage, Ankira on 29 September 2022 has also offered to enter into a Voluntary Planning Agreement to provide funding for the Applicant’s portion of the regional OSD Tank and Bioretention Basin for the Southwest Catchment Area. In the interim, an on-site temporary OSD system is also provided on the development site to address drainage requirements.

5. All new lots will also be provided with points of electrical, communications and gas supply systems installed in accordance with the requirements of the relevant Authority

6. Clause 7.20 – Terrestrial biodiversity

1. The development site is mapped as Biodiversity – significant vegetation on the CLEP 2015 Terrestrial Biodiversity layer. In deciding whether to grant development consent the Court must consider whether the development is consistent with cl 7.20 of the CLEP 2015.

2. The proposal has gone through a number of redesigns in order to minimise disturbance and adverse impacts to biodiversity. A summary of the key impact avoidance measures is included below:

1. (A)   Redesign of the lot layout and road network to avoid more Cumberland Plain Woodland (CPW), while also being compatible with the broader Caledonia Precinct. Lots are now numbered 301 to 312. Lot 312 contains the OSD basin and retained vegetation to be managed under a Section 88b covenant.

2. (B)   The number of residential lots reduced from 12 to 11.

3. (C)   Locating a large proportion of the proposal in areas of exotic pasture.

4. (D)   Conservation of the most intact stand of CPW in the north and eastern part of the development site.

5. (E)   More than doubling the size of the retained vegetation along Bensley Road from a 10 m wide strip (approximately 0.07 ha) required under the Campbelltown Development Control Plan 2015.

6. (F)   Drainage basin relocated to allow for protection of the vegetation in the south east of the development Site.

7. (G)   Retaining wall moved off the north eastern Site boundary (adjoining Lot 1 in DP 1259735) to avoid impacts to the root zone of trees adjacent to the Site boundary.

8. (H)   The retaining wall design has been chosen to minimise the size of footings and hence, impacts to native vegetation. A root investigation study of trees in proximity to the retaining wall by Urban Arbor dated 31 August 2022 confirms the trees that could be retained.

9. (I)   Landscape plantings of koala feed trees as street trees – larger trees to be used as landscape plantings to meet fire access and line of sight requirements.

10. (J)   The area of native vegetation excluded from development in Lot 312 has been increased to 0.21 ha. The additional area is composed of vegetation that was to be retained in the former Lots 205-209. An additional area (0.03 ha) will be revegetated within Lot 312.

11. (K)   Lot 202 renamed Lot 301 and continues to allow for the retention of the high value trees in the north west of the subject site (Trees 1-4).

1. (L)   Protection of all hollow bearing trees on the Site.

2. (M)   Trench through native vegetation in Lot 312 (formerly Lot 214): VMP moved to an area of predominantly exotic grassland.

3. (N)   Cut and fill plans show that fill will encroach Lot 312 near Road No. 3 and the OSD basin, but it does not impact native vegetation.

4. (O)   VMPs have been prepared for Lots 301 and 312.

5. (P)   Lot-specific Private Property VMPs and Section 88B covenants over Lots 301 and 312. Lot 301 will be managed for retention of high value trees (Trees 1-4).

7. The Court would be satisfied that the development minimises disturbance and adverse impacts to biodiversity.

9. Section 100B of the Rural Fires Act 1997 (RFS Act):

1. The proposed development requires a bush fire safety authority pursuant to s100B of the RFS Act as it is development for the purposes of a subdivision of bushfire prone land that could lawfully be used for residential or rural residential purposes (in accordance with cl 100B(1)(a) of the RFS Act).

2. Section 100B(3) of the RFS Act requires that a person must obtain such a bushfire safety authority before developing bushfire prone land for a purpose referred to in s100B1(1). The NSW Rural Fires Service (NSW RFS) is an approval body pursuant to s 4.46 of the EPA Act.

3. The Council referred the Development Application to the NSW RFS. On 7 January 2022 the NSW RFS issued general terms of approval.

4. The amended subdivision layout has been revisited in relation the requirements of Planning for Bush Fire Protection 2019. The implementation of the temporary Asset Protection Zones (APZs) is suitable to manage the existing bushfire risk and the proposed subdivision can be developed without risk to human life and property. The Supplementary Bush Fire Assessment Report by Building Code & Bushfire Hazard Solutions dated 23 August 2022 submitted with the amended Development Application package (and listed in condition (1) of Annexure A) describes the site as suitable for residential development with the implementation of the bushfire safety measures contained in the report.

5. The Council referred the Development Application as amended to the NSW RFS. The General Terms of Approval from the NSW RFS have not yet been received.

6. However, the parties note that the Court may grant consent absent receipt of the GTA’s in accordance with section 4.47(5) of the EPA Act. Therefore, the parties have included conditions of development consent agreed between the parties Bushfire experts.

10. Biodiversity Conservation Act 2016: the jurisdictional preconditions under the Biodiversity Conservation Act 2016 (BC Act) and the Biodiversity Conservation Regulation 2017 (Regulation) are met by the development application as follows:

1. Part 6 of the BC Act establishes an offsets scheme which aims to ensure there is no net loss of biodiversity values. Entry into the Biodiversity Offset Scheme (BOS) is triggered by exceeding the clearing thresholds as outlined in Part 7 of the NSW Biodiversity Conservation Regulation 2017 (BC Regulation), by being identified on the Biodiversity Values Map (BVM), or being State Significance Development. The clearing threshold includes all proposed clearing of native vegetation including for APZs.

2. The proposal development triggers the BOS, as the subdivision affects land identified on the BVM and exceeds the native vegetation clearing threshold as it will result in the clearance of > 0.25 ha of native vegetation (minimum lot size for the site is 500 m²). Therefore, a Biodiversity Development Assessment Report (BDAR), prepared in accordance with the Biodiversity Assessment Method (BAM, DPIE 2020a), is required.

3. The Development Application is supported by the Biodiversity Development Assessment Report (BDAR) prepared by Ecoplanning dated 12 September 2022 (references in condition (1) of Annexure A) in accordance with the requirements of the BC Act and BC Regulation.

4. Section 7.13 of the BC Act requires the Court, to consider the BDAR and if the Court decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire the necessary biodiversity credits.

5. The BDAR identified that the following biodiversity credits would need to be retired to offset the impacts of the proposed development and have been included in the parties agreed conditions of development consent:

1. 7 Grey Box – Forest Red Gum grassy woodland on flats of the Cumberland Plain, Sydney Basin Bioregion (PCT 849) ecosystem credits; 8 Large-eared Pied Bat (Chalinolobus dwyeri) species credits; and

2. 7 koala (Phascolarctos cinereus) species credits.

11. Pursuant to s 6.12 of the BC Act and s 7 of the Biodiversity Assessment Method, the BDAR (pages 54 – 77) addresses the measures that the Applicant proposes to take to avoid and minimise the impact of the proposed development. In this regard, a number of options for the proposal have been considered in an attempt to minimise prescribed impacts and impacts to native vegetation and threatened species habitat. Option 5 (see s 6.1 of the BDAR) has been selected as the preferred option as it seeks to avoid and retain CPW within the subject land and adjacent VMP area (i.e. Lot 312) and includes measures to enhance habitat and movement corridors for the Koala, encouraging movement of Koalas.

12. Having regard to the matters set out above, the parties are satisfied that:

1. There are no other jurisdictional matters which are required to be addressed;

2. All jurisdictional prerequisites to the proper exercise of the Court’s power to approve the Development Application as amended have been met; and

3. The Court has the power to grant consent to the Development Application in accordance with the s34 Agreement filed on 20 October 2022.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions to uphold the appeal and grant consent to the development application in accordance with ss 4.16 and 4.17 of the EPA Act, and as required by s 34(3)(a) and (b) of the LEC Act for the following reasons:

1. The issues in this matter were complex and to attain a better planning outcome I allowed the s 34 conciliation conference to extend from 22 August 2022 to 20 October 2022. Numerous experts had filed reports and joint reports prior to the commencement of the conciliation conference, and during the conciliation conference those experts conferred again in relation to amended plans. The experts in this matters were:

1. Bushfire – Mr Stuart McMonnies a Bushfire Planning Practitioner engaged by Ankira, Mr Daniel Cleland a bushfire consultant engaged by the Council

2. Town planners – Ms Julie Garratley, a town planner engaged by Ankira, and Mr David Timmins, a town planner employed by the Council.

3. Arboricultural experts – Mr Bryce Claassens, an arborist engaged by Ankira, and Ms Catriona Mackenzie, an arborist engaged by the Council.

4. Engineering – Mr Shane Gray, an engineer engaged by Ankira, and Mr Adam Urszulak, an engineer employed by the Council

5. Ecologists – Mr Bruce Mullins, an ecologist engaged by Ankira, and Dr Danny Wotherspoon, an ecologist engaged by the Council.

2. I accept the jurisdictional prerequisites as set out by the parties in para [8] above.

3. The development application was reduced from a 13 lot subdivision to a 12 lot subdivision, and after Council consented to the new plans pursuant to s 55 of the EPA Regulation the final plans and reports were filed on 9 November 2022, and are listed as follows:

Drawing Title	Drawing Reference	Revision	Prepared by	Date
Cover Sheet	15024E8 Sheet 1 of 16	F	Beveridge Williams & Co P/L	15.09.2022
Soil and Water Management Plan	15024E8 Sheet 2 of 16	D	Beveridge Williams & Co P/L	29.08.2022
Soil and Water Management Notes	15024E8 Sheet 3 of 16	A	Beveridge Williams & Co P/L	26.06.2022
Plan of Civil Works	15024E8 Sheet 4 of 16	C	Beveridge Williams & Co P/L	29.08.2022
Longitudinal Section, Typical Section & Pavement Details of Roads No 2-4	15024E8 Sheet 5 of 16	C	Beveridge Williams & Co P/L	29.08.2022
Longitudinal Section, Typical Section & Pavement Detail of Roads No 1	15024E8 Sheet 6 of 16	A	Beveridge Williams & Co P/L	24.06.2022
Cut & Fill Plan	15024E8 Sheet 7of 16	C	Beveridge Williams & Co P/L	08.07.2022
Proposed Details of Basin	15024E8 Sheet 8 of 16	B(Rev B noted on left hand side of plan)	Beveridge Williams & Co P/L	08.06.2022
Detailed Sections of Proposed Basin	15024E8 Sheet 9of 16	B (Rev B noted on left hand side of plan)	Beveridge Williams & Co P/L	08.06.2022
Cross Section of Road 3 & 4 @CH22 and 144m	15024E8 Sheet 10 of 16	B	Beveridge Williams & Co P/L	04.07.2022
Retaining Wall Details and Plan	15024E8 Sheet 11 of 16	D (Rev D noted on left hand side of plan)	Beveridge Williams & Co P/L	29.08.2022
Cross Section of Road 1	15024E8 Sheet 12of 16	C	Beveridge Williams & Co P/L	20.07.2022
Cross Section of Road 2	15024E8 Sheet 13 of 16	D (Rev D noted on left hand side of plan)	Beveridge Williams & Co P/L	29.08.2022
Cross Section of Road 2	15024E8 Sheet 14 of 16	C	Beveridge Williams & Co P/L	20.07.2022
Cross Section of Road 3	15024E8 Sheet 15 of 16	C	Beveridge Williams & Co P/L	20.07.2022
Cross Section of Road 4	15024E8 Sheet 16 of 16	C	Beveridge Williams & Co P/L	20.07.2022
Concept Engineering Design Catchment Plan – Existing Conditions	15024E12 -300 Sheet 1 of 3	A	Beveridge Williams & Co P/L	14.09.2022
Concept Engineering Design Catchment Plan – Interim Conditions	15024E12 - 301 Sheet 2 of 3	A	Beveridge Williams & Co P/L	140.9.2022
Concept Engineering Design Catchment Plan – Ultimate Conditions	15024E12 - 302 Sheet 3 of 3	A	Beveridge Williams & Co P/L	14.09.2022
Bensley Road Pit Modifications	15024E11Sheet 1 of 1	A	Beveridge Williams & Co P/L	02.09.2022
Plan of Subdivision	15024PS Sheet 1 of 1	G	Beveridge Williams & Co P/L	15.09.2022
Combined Services Plan Sheet 1 of 1	15024E7	A	Beveridge Williams & Co P/L	22.07.2022
Proposed Plan of Street Trees	15024E3 Sheet 1 of 1	O	Beveridge Williams & Co P/L	15.09.2022

Associated Documentation:

1. Document Title: Arboricultural Impact Assessment Report and Tree Protection Plan, Revision: 5, Author: Urban Arbor: Dated: 31 August 2022.

2. Document Title: Biodiversity Development Assessment Report, Version: 5.2 FINAL, Author: Ecoplanning, Dated: 12 September 2022.

3. Document Title: Koala Assessment, Version: Final – 3.1, Author: Ecoplanning, Dated: 28 August 2022.

4. Document Title: Private Property Vegetation Management Plan (Lot 301), Version: Final 2.0, Author: Ecoplanning, Dated: 12 July 2022

5. Document Title: Vegetation Management Plan (Lot 312), Version: Final 4.2, Author: Ecoplanning, Dated: 14 September 2022.

6. Document Title: Stage 1 Preliminary Site Investigation and Preliminary Salinity Assessment for Lot 2 in DP550894 308 Bensley Road, Ingleburn, NSW, Revision: Rev 0, Author: Alliance Geotechnical, Dated: 27 November 2017.

7. Document Title: Aboriginal Cultural Heritage Due Diligence Assessment: Version: 2.0, Author: Kayandel Archaeological Services. Dated: 8 May 2020.

8. Document Title: Waste Management Plan – Section 1 – Construction Stage.

9. Document title: Supplementary Bush Fire Assessment Report Proposed: Residential Subdivision At: Lots 100 & 101 DP 1259735 308 Bensley Road, Ingleburn NSW, Author Building Code & Bushfire Hazard Solutions, Reference Number: 211415C, Dated 23 August 2022.

10. Stormwater Assessment Report (inc Appendix A -D, prepared by Beveridge Williams & Co P/L dated 14/09/2022.

11. Stormwater Drainage Maintenance Management Plan September 2022, Ref 15024 dated 29 August 2022 prepared by Beveridge Williams & Co P/L dated /09/2022.

4. Substantial work was put into drafting the conditions in Annexure A by the parties, their lawyers and experts (s 4.17 of the EPA Act) and including but not limited to the conditions recited below as set out in Annexure A:

1. Condition (5) Voluntary Planning Agreement;

2. Condition (17) Street Tree Maintenance

3. Condition (18) Landscaping Requirements

4. Condition (19) Appointment of consultants and contractors and responsibilities during site works and VMP implementation.

5. Condition (20) Retirement of ecosystem credits and species credits.

6. Condition (23) Soil and Water Management Plan

7. Condition (24) Pollution Control

8. Condition (25) Construction Environmental Management Plan

9. Condition (26) Stormwater Management and Drainage Plan

10. Condition (27) Flood Prone Land

11. Condition (28) Interim OSD and Raingarden Water Quality Treatment Basin Engineering Design

12. Condition (29) Temporary Interim OSD and Raingarden Basin Agreement

13. Condition (32) Retaining Walls

14. Conditions (66) and (93) Aboriginal Cultural Heritage

15. Condition (94) Koala Protection Measures

16. Conditions (97) Bushfire Protection & (98) Asset Protection Zones

17. Together with the numerous restrictions on user/easements and public positive covenants to be registered on various titles within the subdivision

10. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall uphold the appeal and grant the Development Consent in accordance with s 4.16 of the EPA Act.

11. The Court notes:

1. The Campbelltown City Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA 2130/2020/DA-SW the subject of these proceedings as shown in the amended plans and details set out in para [9] above and referred to as the ‘amended DA’.

2. On 23 September 2022 the amended DA was lodged/published with the NSW Planning Portal.

3. The Applicant filed the amended DA in Court on 20 October 2022 and the plans on 9 November 2022.

12. The Court Orders:

1. The Appeal is upheld.

2. Consent is granted to Development Application DA 2130/2020-SW (as amended) for the subdivision to create 12 residential allotments, temporary stormwater management facility, vegetation removal, road drainage, services and retaining wall works at the property being Lot 101 in Deposited Plan 1259735 known as 308 Bensley Road, Ingleburn, NSW 2565 subject to the conditions set out in Annexure A.

3. The Applicant to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 , as agreed or assessed. .

…………………………

M Peatman

Acting Commissioner of the Court
Annexure A (885094, pdf)

**********

Decision last updated: 11 November 2022