Busby Homes NSW Pty Ltd v Blacktown City Council

[2025] NSWLEC 1105

Land and Environment Court

New South Wales

Medium Neutral Citation:

Busby Homes NSW Pty Ltd v Blacktown City Council [2025] NSWLEC 1105

Hearing dates:

Conciliation conference on 30 January 2025

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 23-01109 for consolidation of 6 lots into 4 Torrens title lots, construction of a one-way laneway and associated civil works at Lots 10, 11, 12, 13, 14 and 15 Section 1 DP 1984, Lincoln Avenue Riverstone, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.10, 6.6, 6.7, 6.8, Ch 6, Div 2

State Environmental Planning Policy (Precincts – Central River City) 2021, ss 4.1AB, 4.1B, 6.1, Appendix 7

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

Category:

Principal judgment

Parties:

Busby Homes NSW Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/361179

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 23-01109 for consolidation of 6 lots into 4 Torrens title lots, construction of a one-way laneway and associated civil works (the proposal), at Lots 10, 11, 12, 13, 14 and 15 Section 1 DP 1984, Lincoln Avenue Riverstone (the site) by Blacktown City Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 January 2025. I presided over the conciliation conference. 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. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

3. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, in accordance with the following documents:

Civil Plans, prepared by Urban Consulting Engineers
Plan name	Drawing Ref	Revision	Date
U22-04-001	Cover Sheet & Drawing Index	G	27/01/2025
U22-04-002	General Arrangement Plan & Notes	E	27/01/2025
U22-04-101	Bulk Earthworks Plan	G	27/01/2025
U22-04-102	Bulk Earthworks Cross Sections	F	27/01/2025
U22-04-103	Retaining Wall Details	E	27/01/2025
U22-04-104	Environmental Site Management Plan	D	27/12/2024
U22-04-105	Environmental Site Management Details	A	30/05/2022
U22-04-201	Roadworks Layout Plan	G	27/01/2025
U22-04-202	Lincoln Avenue Longitudinal & Cross Sections	D	23/09/2024
U22-04-203	Piccadilly Street Longitudinal & Cross Sections	C	21/08/2024
U22-04-204	Lane Way Longitudinal & Cross Sections	E	27/01/2025
U22-04-205	Intersection Details – Sheet 1	E	27/01/2025
U22-04-206	Intersection Details – Sheet 2	E	27/01/2025
U22-04-301	Stormwater Catchment Plan	E	27/12/2024
U22-04-302	Stormwater Drainage Plan	F	27/12/2024
U22-04-303	Stormwater Longitudinal Sections	F	27/01/2025
U22-04-305	Stormwater OSD Typical Section & Details	D	27/12/2024
U22-04-306	Stormwater Treatment Catchment Plan	C	27/12/2024
U22-04-401	General Services Layout Plan	D	27/01/2025
U22-04-501	Vehicle Turning Path Layout	B	27/01/2025
U22-04-502	Signages and Linemarking Plan	A	27/01/2025

Pre-conditions to the grant of consent

5. State Environmental Planning Policy (Precincts – Central River City) 2021 The site is located within the Riverstone Precinct of Central River City and is subject to the controls in Appendix 7 – Alex Avenue and Riverstone Precinct.

6. The site is zoned R2 Low Density Residential pursuant to State Environment Planning Policy (Precincts – Central River City) 2021 (SEPP Central River City) and the proposal is permissible with consent. The proposal is consistent with the objectives of the zone as it ultimately proposes to provide for the housing needs of the community within a low density residential environment, as well as provide services via vehicular access to meet the day to day needs of the residents.

7. Pursuant to s 4.1AB(3), the minimum lot size for a dwelling house is 300m² if the dwelling density (per hectare) shown on the Residential Density Map in relation to the land is 15. The site is shown on the Residential Density Map RDN_005 as having a density of 15 dwellings per hectare, enlivening this minimum requirement. The proposal seeks consent for subdivision of the site to create 4 lots, with lots 1 and 4 indicated as being for dwelling houses. All proposed lots are above the 300m² minimum lot size and can provide for a dwelling house.

8. Section 4.1B applies as the requirements of cl 4.1B(2) are all met. As such, the density of any residential development is not to be less than the density established by the Residential Density Map RDN_005, which is 15 dwellings per hectare for the site. The site has a total area of 1,764.6m². The proposal is for 4 lots, being 22.675 dwellings per hectare, which complies with this provision.

9. I accept the Council’s submission that the necessary public utility infrastructure will be available once required, pursuant to s 6.1.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, the consent authority must be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The applicant has provided a Preliminary Site Investigation (PSI) prepared by Sydney Environmental Group and dated 26 April 2022. The PSI concludes that the site is suitable for the proposed future land use, subject to the recommendations relating to the appropriate removal of soil materials and demolition inspections. No further contamination investigations are recommended. The site is not identified as a contaminated site on the NSW Environmental Protection Agency’s list of notified sites, nor is it in the vicinity of any listed sites. I am satisfied that the site is suitable for the proposed development, and that there are appropriate conditions of consent in accordance with the recommendations contained within the PSI.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. The Site is mapped as being within the Hawkesbury Nepean Catchment and is subject to the general planning controls in Chapter 6, Division 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity), to which the consent authority must be positively satisfied when granting consent to development in a regulated catchment. The applicant has provided the following documentation to demonstrate that the proposed development will not result in an adverse impact on the Hawkesbury Nepean Catchment:

• Stormwater Management Plan prepared by Urban Consulting Engineers,

• Waste Management Plan prepared by Developable Town Planning,

• On-site Detention Deemed to Comply Spreadsheet (Lot 3) prepared by Urban Consulting Engineers,

• On-site Detention Deemed to Comply Spreadsheet (Lot 3) prepared by Urban Consulting Engineers, and

• Amended Civil Engineering Plans prepared by Urban Consulting Engineers.

12. I am satisfied that the proposal is unlikely to have an adverse environmental impact and pursuant to s 6.10 of SEPP Biodiversity for the following reasons:

1. In satisfaction of s 6.6(2)(a), the proposal utilises a filter cage system to filter and remove pollutants and a media-filled cartridge to clean stormwater through a patented passive filtration system to ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial.

2. In satisfaction of s 6.6(2)(b), the proposal’s impact on water flow in a natural waterbody will be minimised due to the proposed capture of stormwater and retention in onsite drainage system. As demonstrated on page 5 of the Stormwater Management System prepared by Urban Consulting Engineers, the proposed stormwater system will mitigate impacts on water flow and result in a reduced post-development peak flow in comparison to the pre-development peak flow.

3. In satisfaction of s 6.7(2)(a), the proposal will not result in any significant direct or indirect impacts on terrestrial animals or vegetation as the site is currently vacant and an appropriate stormwater management system is emplaced to mitigate any indirect impacts on terrestrial animals and vegetation.

4. In satisfaction of s 6.7(2)(b), the proposal will not have a direct or indirect or cumulative adverse impact on aquatic reserves, due to its location away from any aquatic reserves.

5. In satisfaction of s 6.7(2)(d), the proposal will not result in the erosion or sedimentation of a natural waterbody as it provides stormwater capture, filtration and discharge infrastructure.

6. In satisfaction of s 6.7(2)(e), the proposal will not result in an adverse impact on wetlands or littoral rainforests due to its location well away from these areas.

7. In satisfaction of s 6.8(2)(a), the proposal utilises multiple points of filtration and stormwater quality treatment to ensure that if there is a flood, the effect on the quality of water entering a natural waterbody will be neutral or beneficial.

8. In satisfaction of s 6.8(2)(b), the proposal will have no adverse impact to neighbouring upstream and downstream properties due to the additional capacity provided by the onsite drainage system and resulting reduced post-development peak flow. Accordingly, the proposal will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

Conclusion

13. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 29 January 2025 and I am satisfied, on the basis of the material before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

14. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 23-01109 for consolidation of 6 lots into 4 Torrens title lots, construction of a one-way laneway and associated civil works at Lots 10, 11, 12, 13, 14 and 15 Section 1 DP 1984, Lincoln Avenue Riverstone, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

……………………….

Susan O’Neill

Commissioner of the Court

Annexure A

**********

Decision last updated: 25 February 2025