Archidrome Pty Ltd v Blacktown City Council

[2022] NSWLEC 1629

Land and Environment Court

New South Wales

Medium Neutral Citation:

Archidrome Pty Ltd v Blacktown City Council [2022] NSWLEC 1629

Hearing dates:

Conciliation conference 2 November 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

1) The Appeal is upheld.

2) Development Application DA-21-01954, as amended, for subdivision to create 44 Torrens title residential lots, as well as 20 community title lots (including two common property community title roads and 18 residential community title lots), construction of new roads, construction of 36 two storey dwellings, with the remainder of residential lots provided with building envelope plans at 74-74A Tallawong Road and parts of 87 and 95 Cudgegong Road and part of 84 Tallawong Road, Rouse Hill is approved subject to the conditions set out in 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 amendment, as agreed or assessed. This order applies in addition to the order made on 5 August 2022 in respect of the previous amendment.

Catchwords:

APPEAL – development application – Torrens title subdivision in to 63 residential lots, road construction and construction of 36 two-storey dwellings – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.18, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 9

State Environmental Planning Policy (Precincts—Central River City) 2021 Appendix 11

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

Category:

Principal judgment

Parties:

Archidrome Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
P Lalich (Solicitor) (Applicant)
W Doueihi (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Clayton Utz (Respondent)

File Number(s):

2022/54479

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the subdivision of land at 74-74A Tallawong Road, Rouse Hill, which was lodged with Blacktown Council on 30 November 2021. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The development application has been amended in the course of the appeal proceedings, and the proposed development is now for the subdivision of the land to create 44 Torrens title residential lots and 20 community title lots (including two common property community title roads and 18 residential community title lots), the construction of new roads, and the construction of 36 two storey dwellings, with the remainder of residential lots provided with building envelope plans. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Following an adjournment of the hearing of the appeal, 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 2 November 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 3 November 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended development application provides for an area that will be used for a turning circle pending the development of the land adjacent to the site.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional matters about which the consent authority must be satisfied prior to the grant of consent, together with the Applicant’s Amended Application bundle. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Amended Application bundle, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• Pursuant to the State Environmental Planning Policy (Precincts—Central River City) 2021 (SEPP CRC), the site is zoned R3 Medium Density Residential, in which dwelling houses are permitted with development consent.

• Pursuant to cl 2.6 of Appendix 11 to the SEPP CRC, subdivision is permissible with development consent. Whilst cl 4.1 of Appendix 11 contains minimum subdivision lot size development standards, there is no minimum subdivision lot size that applies to the site the subject of the proposed development.

• Clause 4.1AB(3) of Appendix 11 to the SEPP CRC imposes a development standard for the minimum lot size for dwelling houses, which is 300m². However, exceptions to these minimum lot sizes apply in the R3 zone pursuant to cll 4.1AD(2) and 4.1AF(2). I am satisfied that where the proposed lot sizes for the dwellings do not meet the 300m² development standard, these exceptions apply given that the proposed development includes both the subdivision and the erection of dwelling houses.

• Pursuant to cl 4.1B of Appendix 11 to the SEPP CRC, a minimum dwelling density of 25 dwellings per hectare applies, with which the proposed development complies.

• The proposed development also complies with the height of buildings development standard in cl 4.3 of Appendix 11 to the SEPP CRC.

• Based on the annexures to the Jurisdictional Statement, I am satisfied that the public utility infrastructure required by cl 6.1 of Appendix 11 to the SEPP CRC will be available when it is required.

• Chapter 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) concerns land within the area of the Hawkesbury-Nepean River and applies to the site. It requires, at cl 9.3, the consideration of the strategies set out in cl 9.5 and the planning considerations in cl 9.4. Based on the Jurisdictional Statement, the documents referred to therein, the Applicant’s Amended Application bundle and the Class 1 Application, I have considered the matters in cl 9.4 and the strategies in cl 9.5.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of cl 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned and a Detailed Site Assessment prepared by Sydney Environment Group dated 16 April 2021. The report confirms that the site is able to be remediated in accordance with a Remedial Action Plan dated 16 April 2021 and, therefore, will be made suitable for the proposed development.

• The amended development application was accompanied by a BASIX Certificate dated 12 October 2022 in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.

• The development application was notified between 11 and 27 January 2022 in accordance with s 4.18 of the EPA Act. No submissions were received.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. The Respondent, as the relevant consent authority, agrees to the amendment of the Application for development consent (DA-21-01954) in accordance with the documents described in the Schedule.

2. The Applicant uploaded the amended application on the NSW planning portal on 3 November 2022.

9. The Court orders that:

1. The Appeal is upheld.

2. Development Application DA-21-01954, as amended, for subdivision to create 44 Torrens title residential lots, as well as 20 community title lots (including two common property community title roads and 18 residential community title lots), construction of new roads, construction of 36 two storey dwellings, with the remainder of residential lots provided with building envelope plans at 74-74A Tallawong Road and parts of 87 and 95 Cudgegong Road and part of 84 Tallawong Road, Rouse Hill is approved subject to the conditions set out in Annexure A.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed. This order applies in addition to the order made on 5 August 2022 in respect of the previous amendment.

……………………….

J Gray

Commissioner of the Court

54479.22 Annexure A (865726, pdf)

54479.22 Schedule (72645, pdf)

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Decision last updated: 11 November 2022