Boval Engineering Pty Ltd v Penrith City Council

[2022] NSWLEC 1660

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boval Engineering Pty Ltd v Penrith City Council [2022] NSWLEC 1660

Hearing dates:

Conciliation conference on 7 October 2022

Date of orders:

30 November 2022

Decision date:

30 November 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court Orders:

(1) The Applicant is to pay the Respondent's costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1,000.

(2) The appeal is upheld.

(3) Development Application No. DA21/0677, for the construction of a new storage building, reconfiguration of on-site carparking, hardstand area for bin storage, tree removal, and new landscaping on 13 Coombes Drive, Penrith NSW (legally described Lot 20 DP242954), is approved subject to the conditions of consent set out in Annexure A.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016 ss 7.3, 7.7

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

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34

Penrith Local Environmental Plan 2010 cll 4.3, 4.4, 7.4, 7.6, 7.7, 7.30

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021 cll 9.3, 9.4, 9.5

Texts Cited:

Penrith Development Control Plan 2014

Category:

Principal judgment

Parties:

Boval Engineering Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
A Avery (Solicitor) (Respondent)

Solicitors:
Norton Rose Fulbright (Applicant)
Penrith City Council (Respondent)

File Number(s):

2022/190588

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) and arise from Penrith City Council’s deemed refusal of development application DA21/0677. This development application sought consent for the construction of a new storage building, reconfiguration of on-site car parking, hardstand area for bin storage, tree removal and new landscaping at Lot 20, DP 242954, 13 Coombes Drive, Penrith.

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 was held on 7 October 2022. I presided over the conciliation conference.

3. After 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.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 and from this I note the following:

1. Pursuant to the Penrith Local Environmental Plan 2010 (PLEP), the site is zoned IN1 General Industrial, within which the proposed development is permissible with consent.

2. The proposed building is a maximum height of 6.2m, which complies with the maximum 12m height established under PLEP cl 4.3.

3. No FSR is prescribed for the site under PLEP cl 4.4.

4. The parties submit and I am satisfied that the principles of sustainable development as they relate to the development are achieved, in accordance with the relevant requirements of PLEP cl 7.4.

5. The parties submit and I am satisfied that the proposed development is not likely to impact, or be impacted by, salinity processes and that the requirements of PLEP cl 7.6(2) are met.

6. The parties submit and I am satisfied that the site is currently serviced by adequate water and sewer and that the requirements of PLEP cl 7.7 are met.

7. The parties submit and I am satisfied that adequate planning and design measures have been incorporated to reduce the urban heat island effect, and that the requirements of PLEP cl 7.30 are met. I note in particular that the modifications made to the application through the conciliation process have increased tree retention across the site in accordance with this clause.

8. The parties submit that the site contains Cumberland Plain Woodland from which, in the amended application, three Eucalyptus moluccanna trees are proposed to be removed. They further submit, and I accept that this will not isolate or fragment the remaining Cumberland Plain Woodland on site, nor impact the ability for cross-pollination within the locality and that the proposed development will not significantly affect threatened species. This is further supported by conditions of consent. I am therefore satisfied that the requirements of ss 7.3 and 7.7 of the Biodiversity Conservation Act 2016 (BC Act) are met by the proposed development as amended.

9. Pursuant to cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 the parties submit and I am satisfied that the proposed development does not involve a change in use of the land nor any excavation and that cl 4.6 is therefore not triggered.

10. The parties submit and I accept that through the application of the relevant parts of the Penrith Development Control Plan 2014 (PDCP), the relevant requirements of cll 9.3, 9.4 and 9.5 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) have been taken into consideration in the assessment of this application.

5. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

6. The Court notes:

1. Penrith City Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA21/0677 in accordance with the plans and documents listed in Condition 1 of Annexure A.

2. The amended plans and documents were uploaded to the NSW Planning Portal on 16 November 2022.

3. The applicant subsequently filed the amended plans and documents with the Court on 17 November 2022.

7. The Court orders:

1. The Applicant is to pay the Respondent's costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1,000.

2. The appeal is upheld.

3. Development Application No. DA21/0677, for the construction of a new storage building, reconfiguration of on-site carparking, hardstand area for bin storage, tree removal, and new landscaping on 13 Coombes Drive, Penrith NSW (legally described Lot 20 DP242954), is approved subject to the conditions of consent set out in Annexure A.

E Washington

Acting Commissioner of the Court

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Annexure A

Decision last updated: 30 November 2022