Attard v Penrith City Council

[2023] NSWLEC 1494

Land and Environment Court

New South Wales

Medium Neutral Citation:

Attard v Penrith City Council [2023] NSWLEC 1494

Hearing dates:

Conciliation conference 29 August 2023

Date of orders:

31 August 2023

Decision date:

31 August 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application No DA22/0657, for the demolition of existing structures and the construction a multi dwelling housing development consisting of 14 x two-storey townhouses (13 x 3 bed and 1 x 4 bed) with 28 car parking spaces within garages and 3 open style visitor spaces, associated driveway, tree removal, and ancillary landscaping, fencing, and stormwater and drainage works on land legally described as Lot 131 and Lot 132 in DP710273 and known as 143 & 145 Stafford Street, Penrith, NSW, 2750, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.12, 7.13, 7.16

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environment Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cll 4.1A, 4.3, 5.21. 7.1, 7.4, 7.6, 7.7, 7.30

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

Category:

Principal judgment

Parties:

Mark Attard (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
A Avery (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Penrith City Council (Respondent)

File Number(s):

2022/282675

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA22/0657 (the DA) by Penrith City Council (Council).

2. The DA, as amended, seeks consent for demolition of existing structures and the construction a multi dwelling housing development consisting of 14 two-storey townhouses, car parking and associated development at 143 and 145 Stafford Street Penrith, legally identified as Lot 131 and Lot 132 in Deposited Plan 710273 (the site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 29 August 2023. The parties had previously filed an 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 consent to the DA, as amended, in accordance with agreed conditions.

Jurisdiction

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

5. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. Regarding jurisdiction, and noting the advice in the parties’ agreed statement of jurisdictional prerequisites received by the Court on 29 August 2023, I am satisfied in regard to the matters listed below.

Penrith Local Environmental Plan 2010

6. The site is zoned R3 Medium Density Residential under the applicable Penrith Local Environmental Plan 2010 (PLEP). The proposed development can be described as “multi dwelling housing”, a use which is permissible with consent on R3-zoned land. I have had regard to the zone objectives and note that the parties believe the proposal, as amended, is consistent with these objectives.

7. I note and accept the advice of the parties that the proposal does not breach any development standards under PLEP. I note in particular, compliance with cl 4.1A (relating to minimum lot size for multi-dwelling housing) and cl 4.3 (height of buildings), and that there is no applicable floor space ratio control.

8. Clause 5.21 (in relation to flood planning) applies to the site as it is within an identified flood planning area. Clause 5.21(2) requires a consent authority to be satisfied in regard to a number of particular issues relating to flood planning. In this instance, the application is accompanied by a flood study and specialist advice in relation to flood planning (advice from SGC dated 27 May 2023 at Tab 4 to the affidavit of E Fleming dated 28 July 2023). Based on the agreed position of the parties which supports the proposal with respect to the relevant provisions, the specific analysis and conclusions in the SGC advice and my consideration of the matters at cl 5.21(3), I am satisfied that the development:

1. is compatible with the flood function and behaviour on the land, and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

4. incorporates appropriate measures to manage risk to life in the event of a flood, and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

9. Clause 7.1 (in relation to earthworks) applies to the site and nominates a number of matters as considerations. Whilst this clause is not a jurisdictional matter, the parties advise that the relevant considerations have been taken into account.

10. Clause 7.4 (in relation to sustainable development) applies and requires the consent authority to have regard to the outlined principles of sustainable development based on a “whole of building” approach. While no jurisdictional test is involved, I note the parties are satisfied that the proposal is adequate in regard to these matters.

11. Clause 7.6 (in relation to salinity), whilst not a jurisdictional requirement, requires consideration of the impacts of salinity in relation to the site. The parties are again satisfied on this front.

12. Clause 7.7 (in relation to servicing) applies to the site. I accept the advice of the parties that the proposed development would be connected to all essential services. In turn I am satisfied that:

1. the development will be connected to a reticulated water supply, and

2. the development will have adequate facilities for the removal and disposal of sewage, and

3. the need for public amenities or public services has been or will be met.

13. Whilst not a jurisdictional requirement, cl 7.30 (in relation to urban heat) applies to the site and requires that before granting development consent, the consent authority is to be satisfied that planning and design measures are incorporated to reduce the urban heat island effect outlined in that clause. I note that the parties indicate due regard has been had to these matters with dwelling designs amended to promote natural cross ventilation and the proposed windows are generally operable with the number of fixed windows to be limited. The proposed material schedule has also been amended such that the colour of finishes has been lightened slightly to minimise heat impacts. I accept the view of the parties that the proposed landscaping, forming part of the amended DA, directly aims to maximise green infrastructure and retain water in the landscape. Pergolas have also been used to better effect shading.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

14. The parties advise that the site has a historical residential use, and that “[as such], contamination of the land is highly unlikely and the site is suitable for the proposed residential use”. I have considered whether the site is contaminated and accept this advice from the parties. In turn, the requirements of s 4.6(1) of the Resilience and Hazards SEPP are met.

Biodiversity Conversation Act 2016   

15. The parties advise that the site contains an area of Cumberland Plain Woodland (CPW), a critically endangered ecological community, which would be partly cleared. A Biodiversity Development Assessment Report (BDAR) has been prepared by Keystone Ecological (Tab 5 in Exhibit EJF-1 to the affidavit of E Fleming dated 28 July 2023).

16. The parties advise that the BDAR concludes that the site supports 1,665m² of CPW, comprising trees and ground covers. The parties refer me to Figure 19 and Table 6 of the BDAR which shows the implications of the proposed development on the CPW and the impacts to nominated trees. According to the BDAR (p 51), the DA, as amended, would result in impacts to a maximum 779m² of CPW and would require the retirement of one biodiversity credit in order to achieve no net loss of CPW. A position accepted by the parties and addressed as a requirement in proposed Condition 6.

17. In turn, I can find that in relation to s 7.12(2) of the Biodiversity Conversation Act 2016, there is no requirement to obtain the concurrence of the Environment Agency Head in this instance. Further, in relation to s 7.13(2), due consideration has been given to the likely impact of the proposed development on biodiversity values as assessed in the BDAR; and in relation to s 7.13(3), I accept the advice of the parties that the agreement between the parties establishes the appropriate requirement for the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the BDAR. Further, I accept the advice of the parties that s 7.16 is not engaged in this instance because there is no finding of serious and irreversible impacts on biodiversity values. It has also been brought to my attention that the amended DA is accompanied by a Vegetation Management Plan which provides a conservation and preservation strategy for the management of the CPW vegetation to be retained in the northern end of the site.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

18. The parties have advised me that no submissions were made following notification of the proposal.

19. I have also given attention to the relevant development control plan, likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(a)(iii), (b), (c) and (e) of the EPA Act.

Conclusion

20. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

22. With respect to the amendments of the DA, the Court notes that:

1. The Respondent, as the relevant consent authority approves, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending the development application No DA22/0657 in accordance with the amended plans and documents listed below:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. 1395 DA01 Revision J	Site/Ground Floor Plan	N. F. Billyard P/L	2 August 2023
	Drawing No. 1395 DA02 Revision G	Overall Ground Flr Plan & Garbage Store Area		2 August 2023
	Drawing No. 1395 DA03 Revision F	Overall First Floor Plan		2 August 2023
	Drawing No. 1395 DA04 Revision G	Elevations		2 August 2023
	Drawing No. 1395 DA05 Revision H	Elevations & Sections		2 August 2023
	Drawing No. 1395 DA06 Revision G	Sections & Landscape Plan		27 June 2023
	Drawing No. 1395 DA07	Conservation Management Units Plan		20 February 2023
	Drawing No. 1395 DA08 Revision B	Turning Circle Plan		20 April 2023
	Drawing No. 1395 DA09 Revision C	Ground Floor Plan – Units 1-3		27 June 2023
	Drawing No. 1395 DA10 Revision C	First Floor Plan – Units 1-3		2 August 2023
	Drawing No. 1395 DA11 Revision B	Ground Floor Plan – Units 4-6		27 June 2023
	Drawing No. 1395 DA12 Revision C	First Floor Plan – Units 4-6		2 August 2023
	Drawing No. 1395 DA13 Revision C	Ground Floor Plan – Units 7-9		27 June 2023
	Drawing No. 1395 DA14 Revision D	First Floor Plan – Units 7-9		2 August 2023
	Drawing No. 1395 DA15 Revision B	Ground Floor Plan – Units 10-12		27 June 2023
	Drawing No. 1395 DA16 Revision D	First Floor Plan – Units 10-12		2 August 2023
	Drawing No. 1395 DA17 Revision D	Ground Floor Plan – Units 13-14		27 June 2023
	Drawing No. 1395 DA18 Revision F	First Floor Plan – Units 13-14		2 August 2023
Reports/Documents
2	Solar Access Assessment including Appendix A – Internal and external Solar Access Plans		Urbaine Design Group	9 August 2023
	Winter solar access diagrams - Issue B			8 August 2023
	Winter solar access – Outdoor Spaces 22 June 9.00-12.00 - Issue A			31 July 2023
	Winter solar access – Outdoor Spaces 22 June 13.00-16.00– Issue B			8 August 2023
	Winter solar access – Ground Floor 22 June 9.00-12.00 - Issue B			8 August 2023
	Winter solar access – Ground Floor 22 June 13.00-16.00 - Issue B			8 August 2023
	Winter solar access – First Floor 22 June 9.00-12.00 - Issue B			8 August 2023
	Winter solar access – First Floor 22 June 13.00-16.00 - Issue B			8 August 2023
Documents
3	BASIX Certificate No: 1251139M_05		Eco Certificates Pty Ltd	24 August 2023

2. The Applicant has filed the documents referred to above with the Court on 25 August 2023.

Orders

23. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA22/0657, for the demolition of existing structures and the construction a multi dwelling housing development consisting of 14 two-storey townhouses (13 x 3 bed and 1 x 4 bed) with 28 car parking spaces within garages and 3 open style visitor spaces, associated driveway, tree removal, and ancillary landscaping, fencing, and stormwater and drainage works on land legally described as Lot 131 and Lot 132 in DP710273 and known as 143 & 145 Stafford Street, Penrith, NSW, 2750, subject to the conditions at Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 31 August 2023