Ark Built Capital Pty Ltd v Blacktown City Council

[2025] NSWLEC 1277

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ark Built Capital Pty Ltd v Blacktown City Council [2025] NSWLEC 1277

Hearing dates:

Conciliation conference on 24 April 2025

Date of orders:

30 April 2025

Decision date:

30 April 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,700, within 28 days of the date of these Orders.

(2) The appeal is upheld

(3) Development Application DA 23/00809 for Torrens title subdivision of 2 lots into 3 lots, being 2 residential lots and 1 lot for special use and recreational purposes on the land known as Lot 18 in DP 13137 and Lot A in DP 389673 also otherwise known as 5 Schofields Road and 10 Advance Street Schofields NSW 2762, is determined by the granting of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – Torrens title subdivision – no works proposed - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulations 2021, s 38

State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 7, cll 2.6, 6.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2118

Cases Cited:

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Category:

Principal judgment

Parties:

Ark Built Capital Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
M Hanna (Solicitor)(Applicant)
M Podinic (Solicitor)(Respondent)

Solicitors:
Merc Capital (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2024/112554

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA-23-00809 seeking consent for the demolition of existing structures and Torrens title subdivision of 2 lots into 4 lots, road construction, tree removal, bulk earthworks, stormwater drainage and associated site works, including variation to the indicative road layout design (Proposed Development) at 5 Schofields Road and 10 Advance Street Schofields legally described as Lot 18 in DP 13137 and Lot A in DP 389673 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 24 April 2025. I presided over the conciliation conference.

3. During the course of the proceedings, the Applicant has provided the Respondent with amended plans to address the contentions raised by the Respondent. The development application as amended seeks consent for Torrens title subdivision of 2 lots into 3 lots, being 2 residential lots and 1 lot for special use and recreational purposes. The parties agree that the plans, as amended, are acceptable.

4. 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 the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City SEPP) regarding the granting of consent for subdivision in the Alex Avenue and Riverstone Precinct. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note provided to the Court.

8. The Development Application was notified in accordance with the Blacktown Growth Centre Precincts Development Control Plan 2010 for a period of 14 days between 20 September to 20 October 2023. No submissions were received in response to the public notification of the proposed development.

9. The Applicant is the owner of the site, and as the landowner of the site provided consent to the Development Application when it was lodged.

10. The proposed development as amended, does not propose any works on site

11. The Site is zoned R3 Medium Density Residential, RE1 Public Recreation and SP2 Drainage under Appendix 7 – Alex Avenue and Riverstone Precinct Plan 2010, of the Central River City SEPP (Riverstone Precinct Plan). The Site shares a boundary (south boundary) to SP2 Classified Road zoned Schofields Road and Marsh Street and R2 Low-Density Residential (north boundary). The new lots 101 and 103 will be within the R3 zone and the new lot 102 will comprise of the remaining RE1 Public Recreation and SP2 Drainage zones readily seen by comparing the zoning map as it appears in the Statement of Facts and Contentions (SOFAC) filed 20 May 2024 (reproduced at Fig 1 below) and the proposed Plan of Subdivision (reproduced at Fig 2 below).

Fig 1: extract of zoning map as it appears in the SOFAC

Fig 2: Extract of Plan of Subdivision

12. The Torrens title subdivision development is permissible with consent pursuant to cl 2.6 of the Riverstone Precinct Plan and the Proposed Development complies with the minimum subdivision lot size development standards.

13. As the Proposed Development no longer seeks consent for any works, being a paper subdivision, it is no longer integrated development for the purposes of s 4.46 of the EPA Act: Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 at [78] - [80]. In any event, the parties have agreed to condition 3.5, requiring a Deed of Reliance to satisfy the requirements of the Department of Planning and Environment – Heritage in relation to an Aboriginal Heritage Impact Permit (AHIP) dated 29 July 2016 (AHIP number C0002019) issued for the Site for the construction of stormwater management and related road infrastructure to service the Alex Avenue and Riverstone Precincts.

14. Although Schofields Road is a classified road, I accept that s 2.118 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 is not relevant to the Proposed Development as amended, because:

1. the proposed subdivision does not result in the creation of an additional lot with dwelling entitlements as there will still be 2 residential lots and the third lot, proposed lot 102 is zoned SP2 and RE1 on which the construction of a dwelling is not permitted;

2. the estimated development cost is less than $185,000; and

3. there are no proposed dwellings, or any other building that is to be held under strata title.

15. For the avoidance of any doubt, the parties have agreed to Condition 3.1 restricting access to the Classified Road.

16. Given the Proposed Development does not create additional residential lots, no additional public utility infrastructure is required: cl 6.1, Riverstone Precinct Plan.

17. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

18. 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.

Notations:

19. The Court notes:

1. The Respondent, Blacktown City Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-23-00809 in accordance with the following amended plans and reports (Amended Development Application)

2. Plans

Document Title	Drawing Number	Date	Prepared by
Plan of Proposed Subdivision	1	12/02/2025	NWS Survey

3. The Applicant has filed the amended development application listed above with the Court on 15 April 2025.

Orders:

20. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,700, within 28 days of the date of these Orders.

2. The appeal is upheld

3. Development Application DA-23-00809 for Torrens title subdivision of 2 lots into 3 lots, being 2 residential lots and 1 lot for special use and recreational purposes on the land known as Lot 18 in DP 13137 and Lot A in DP 389673 also otherwise known as 5 Schofields Road and 10 Advance Street Schofields NSW 2762, is determined by the granting of consent, subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court 

Annexure A

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Amendments

06 May 2025 - Made amendment to para 11 - change from R2 to R3

Decision last updated: 06 May 2025