BW Cranebrook Pty Ltd v Penrith City Council

[2023] NSWLEC 1036

Land and Environment Court

New South Wales

Medium Neutral Citation:

BW Cranebrook Pty Ltd v Penrith City Council [2023] NSWLEC 1036

Hearing dates:

Conciliation conference on 23 December 2022

Date of orders:

02 February 2023

Decision date:

02 February 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment to the development application, agreed at $31,000.00;

(2)      the appeal is upheld;

(3)   Development consent is granted to Development Application No. DA21/0837 for construction and use of a mixed-use development consisting of a child care centre, swim school, service station, three take away food and drink premises, at-grade car parking, landscaping and subdivision at 1 Renshaw Street, Cranebrook, and associated drainage work in Lot 1 DP 286568, subject to the conditions set out in Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.46, 4.47, 8.7, 8.15
Environment Planning and Assessment Regulation 2000, cl 49

Environment Planning and Assessment Regulation 2021, s 50
Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cll 2.2, 2.3, 2.6, 4.1, 4.3, 4.4, 5.10, 5.21, 7.5, 7.6, 7.7, 7.22

Roads Act 1993, s 138

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 6

State Environmental Planning Policy (Industry and Employment) 2021 ss 3.1, 3.6, Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 3.11, 4.6

State Environmental Planning (Transport and Infrastructure) 2021, cll 2.109, 2.122

State Environmental Planning Policy Amendment (Water Catchments) 2022

Sydney Regional Environmental Plan No. 20 – Hawkesbury Nepean River cll 5, 6, 11

Texts Cited:

Penrith Development Control Plan 2014

NSW Rural Fire Service, Planning for Bushfire Protection, 2019

Category:

Principal judgment

Parties:

BW Cranebrook Pty Ltd ATF BW Cranebrook Trust (First Applicant)
BW Cranebrook 2 Pty Ltd ATF BW Cranebrook Trust 2 (Second Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
F Rourke (Solicitor)(Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Allens (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/167570

Publication restriction:

No

Judgment

1. COMMISSIONER: BW Cranebrook Pty Ltd ATF BW Cranebrook Trust and BW Cranebrook 2 Pty Ltd ATF BW Cranebrook Trust 2 (the Applicant) has appealed the refusal by Penrith City Council (the Respondent) of its Development Application No. DA21/0837, made with owners’ consent, for construction and use of a mixed-use development consisting of a child care centre, swim school, service station, three take away food and drink premises, at-grade car parking, landscaping and subdivision (the principal works) at 1 Renshaw Street, Cranebrook (the principal site) and associated drainage work (which together with the principal works constitute the Proposed Development) in Lot 1 DP 286568 (which together with the principal site constitute the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified by the Respondent between 6 December 2021 to 31 January 2022. Four submissions were received in response during the public notification period, of which two were supporting and two were objecting, to the Proposed Development.

4. On 23 December 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. No site inspection was undertaken prior to the conciliation conference as all contentions in the appeal were resolved through an agreement between the Parties.

6. Under the agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of the EP&A Act concerning bushfire matters:

1. the Subject Site is bush fire prone land, and as required under s 4.14 of the EP&A Act, I am satisfied that the Proposed Development conforms to the requirements of Planning for Bush Fire Protection 2019, as confirmed in the Applicant’s Bush Fire Assessment Report dated 28 September 2021;

2. the Proposed Development is integrated development as it requires a bush fire safety authority under s 100B of the Rural Fires Act 1997, and:

1. pursuant to the provisions of s 4.47 of the EP&A Act, the NSW Rural Fire Service (RFS) has provided General Terms of Approval (GTAs) in respect of the Proposed Development; and

2. the GTAs issued by NSW RFS have been incorporated into the Parties agreed conditions of consent;

2. in relation to other matters concerning the EP&A Act:

1. the Proposed Development includes site access via Renshaw Street, which will require works on a public road, but pursuant to s 4.46(3) of the EP&A Act, the Proposed Development is not integrated development in respect of the consent required under s 138 of the Roads Act 1993 because approval of the development application and the s 138 application is required from the Council;

3. in relation to the Roads Act 1993:

1. the Parties agree that the carrying out of required upgrade works at the intersection of Renshaw Street and Andrews Road is not part of the development for which consent is sought in this appeal, but:

1. those upgrade works will be separately authorised by way of an application for approval from Council under s 138 Roads Act 1993 at a later time;

2. because Andrews Road is a classified regional road, the Council may only give approval under s 138(2) of the Roads Act 1993 with the concurrence of Transport for NSW (TfNSW);

2. the Parties’ agreed deferred commencement conditions require the Applicant to provide evidence to Council that TfNSW is satisfied with the proposed design of the intersection upgrade, and condition 74 requires that:

1. works at the intersection of Renshaw Street and Andrews Road will be consented by Council;

2. any upgrade works will be consistent with Council’s consent, and are to be completed prior to the issue of an Occupation Certificate;

4. in relation to the provisions of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), which still apply to the Proposed Development because the Applicant’s development application was lodged but not finally determined prior to 1 March 2022:

1. as required under the provisions of cl 49(1) of the EP&A Regulation, and as noted above (at [1]). the consent of the owners of the Site accompanied the Applicant’s development application

2. The Proposed Development also proposes stormwater drainage works on the adjacent lot, described as Lot 1 in DP 286568 (Lot 1), and:

1. Lot 1 is Neighbourhood Association Property in the same Neighbourhood Association as the principal site; and

2. landowner's consent from the Neighbourhood Association was received on 18 November 2022 and was provided with the Applicant’s amended application;

5. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 3.11 of the SEPP R&H requires the preparation of a preliminary hazardous analysis where an applicant proposes to carry out development for the purposes of a potentially hazardous industry, and:

1. the Applicant has provided a Risk Screening report dated November 2021, which accompanied the Applicant’s development application and concluded that the Proposed Development would not be 'for the purposes of a potentially hazardous industry', as the required setback distances from fuel bowsers to sensitive use boundaries were satisfied;

2. as a consequence the provisions of s 3.11, and Pt 3 of the SEPP R&H do not apply to the Proposed Development and a preliminary hazardous analysis is not required;

2. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the Applicant has provided a Due Diligence Environmental Site Assessment Report dated August 2021 which accompanied its application and concluded the Subject Site is suitable for the Proposed Development;

2. the Parties’ agreed conditions of consent include procedures for any 'unexpected finds' of contaminated soils should this eventuate following the grant of consent; and

3. I am be satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development;

6. in relation to the relevant provisions of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP I&E):

1. the Applicant’s amended development application seeks consent to display signage;

2. as required under the provisions of s 3.6 of SEPP I&E, the Applicant’s amended documentation confirms that:

1. the signage is consistent with the objectives of s 3.1(1)(a) and satisfies the assessment criteria in Sch 5;

2. the signage is compatible with the desired amenity and visual character of the area, provides effective communication and is of high quality design and finish; and

3. the Parties advise, and I am satisfied that, the Applicant’s proposed signage is consistent with the applicable provisions of SEPP I&E;

7. in relation to the relevant provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I):

1. pursuant to s 2.109 of SEPP T&I:

1. development for the purposes of roads, which would include any relevant road upgrade works (see above at [(3)]) does not require development consent when it is carried out on behalf of a public authority, as will be the case for those works; and

2. there is no later requirement for separate development consent for those upgrade works;

2. the Proposed Development is a traffic-generating development to which the provisions of s 2.122 of SEPP T&I apply; and

1. the Respondent referred the Proposed Development to TfNSW on 7 April 2022; and

2. the Applicant’s Traffic Impact Assessment dated 7 October 2022 confirms that the Proposed Development will not adversely affect the surrounding road network or cause any unreasonable or unsafe traffic or parking implications; and

3. the Parties advise, and I am satisfied that the provisions of s 2.122 of SEPP T&I have been satisfied;

8. in relation to the provisions of Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (SREP 20):

1. the Subject Site is located in the Hawkesbury-Nepean Catchment, which is land to which Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) (SEPP B&C) applies.;

2. however, Ch 6 of the SEPP B&C does not apply to the Proposed Development because the Applicant’s development application was lodged and not yet determined when the provisions became operable;

3. section 6.65 of SEPP B&C states that the 'former provisions' continue to apply to an application for development consent lodged, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022, which occurred on 21 November 2022;

4. the 'former provisions' for the Subject Site are those contained in the SREP 20;

5. when determining an application for consent to carry out development on land to which SREP 20 applies, a consent authority, or the Court on appeal, must consider the general planning considerations in cl 5 of Pt 2 of SREP 20, as well as the specific planning policies and recommended strategies in cl 6 of Pt 2, and the Parties advise, and I am satisfied, that:

1. in relation to cl 5, based on its design, the Proposed Development will not have any significant direct, indirect and/or cumulative adverse impacts on the river system as confirmed in the Applicant’s specialist reports accompanying its Class 1 Application and its amended application, and the Proposed Development is suitable for the Subject Site;

2. in relation to cl 6(1), the Proposed Development is unlikely to have any significant adverse environmental impact on any adjacent or downstream local government area.

3. in relation to cl 6(3), the Applicant’s amended application documents have considered the Proposed Development's potential impact on water quality within the catchment and have concluded that the Proposed Development has been assessed and will be implemented in a manner consistent with the strategies identified, including that the potential erosion of land or sedimentation of a waterbody will be minimised by the implementation of erosion and sediment control measures;

4. in relation to cl 6(10), the Proposed Development is well below the effluent equivalent of 2,500 people, and while a Total Water Cycle Management Study is not required, the design of the proposed subdivision incorporates detention areas where stormwater will be captured and treated prior to being released, such that these measures will ensure that water quality of stormwater being released from the Subject Site will not negatively impact the downstream water quality;

6. the Applicant’s amended application has addressed each of the applicable controls in Pt 3 of SREP 20, and:

1. pursuant to cl 11(7), consent is required for the filling of land, and because cutting and filling is required across the Subject Site to achieve the required development levels, consent for these works is sought as part of the Proposed Development; and

2. pursuant to cl 11(14), consent is required for development for the purposes of a building used for recreation on land that is flood prone land, and consent is sought for a swim school as part of the Proposed Development;

3. the design of the swim school complies with the floor level requirements for the Subject Site and has sufficiently addressed the risk of flooding, such that the swim school facility is unlikely to have any impact on the Middle Nepean & Hawkesbury River Catchment Area;

9. in relation to the provisions of Penrith Local Environmental Plan 2010 (PLEP):

1. The Site is located in the IN2 Light Industrial Zone under the Penrith Local Environmental Plan 2010 (PLEP). The Proposed Development is permissible with consent in the IN2 Zone.

2. Clause 2.2 and 2.3 – The proposed development is permissible with development consent in the IN2 Light Industrial Zone and is consistent with the objectives of that zone.

3. Clause 2.6 and 4.1(3)– The Amended DA seeks consent for subdivision. Pursuant to the Lot Size Map, the Site is subject to a minimum lot size of 1000m2. The lots resulting from the proposed subdivision are each greater than 1000m2.

4. Clause 4.3 – Pursuant to the Height of Buildings Map, the Site is subject to a maximum height of 12m. The proposal complies with this requirement.

5. Clause 4.4 – there is no maximum floor space ratio applicable to the Site

6. Clause 5.10 – the site is not located on or near a heritage item, Aboriginal object or conservation area.

7. Clause 5.21 – The Site is identified as being affected by the 100 year ARI flood event and has a restriction on title which requires any development on the Site to comply with the recommendations of a Flood Report prepared by Worley Parsons dated 9 January 2013. That report required the banks of the channel running parallel to Andrews Road to be raised to no lower than 24.25m. Prior works (unrelated to the Proposed Development) have raised the stormwater channel to comply with these recommendations.

8. The Court can be satisfied of the following requirements in cl 5.21(2):

1. the Proposed Development is compatible with the flood function and behaviour of the land: all floor levels are sufficiently above the required floor level and safe egress from the site can occur in the event of a flood. The Site generally slopes to the south towards the creek.

2. the Proposed Development will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties: the Proposed Development includes construction of a new stormwater network to convey stormwater through a stormwater treatment drain consisting of gross pollutant traps, rainwater tanks, bio retention basins and filter cartridges.

3. the Proposed Development 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: The Child Care Evacuation Plan and the Plans of Management for the service station, swim school and food and drink premises, included in the Amended DA, each include evacuation procedures for a flood event which establish that the Site can be safely evacuated.

4. the Proposed Development incorporates appropriate measures to manage risk to life in the event of a flood: if storms higher than the design storm occur, the Site is graded to allow an overland flow path to form which protects the buildings on the Site. The Applicant’s proposed bio-basins are designed to have an overflow pit when higher storm occurs, so the water will go directly to the pit then out to the headwall. Overland flows will exit the site via overtopping of kerbs.

5. the Proposed Development 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: the bio basins have been sized to accommodate the 3 month flow for each. Overflows are collected by shallow pits and the outlet pipes of these cross over the existing stormwater line. The Civil Plans included in the Amended DA include erosion and sedimentation control measures

9. The Court must consider the following matters in cl 5.21(3):

1. the impact of the development on projected changes to flood behaviour as a result of climate change: by reason of the design features discussed in the previous paragraph the Court can be satisfied that possible future changes to flood behaviour have been considered and accommodated in the design.

2. the intended design and scale of buildings resulting from the development: the design and scale of buildings in the Proposed Development are consistent with the development controls applicable to the Site.

3. whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood: as identified above, the Proposed Development minimises the risk to life in a flood event through the design of the floor levels, stormwater system and bio basins, sedimentation and erosion control measures, and the evacuation plans for each building on site.

4. the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion: as set out in the preceding paragraphs the Court can be satisfied that the Proposed Development has been adequately designed having regard to flooding considerations, such that there will not be a need to modify, relocate or remove buildings resulting from the development.

10. Clause 7.5 – the Site is identified as land with scenic and landscape values. The proposal incorporates buildings of an appropriate scale, bulk and density for the location, with setbacks to Renshaw Street and Andrews Street supported by high quality landscaping.

11. Clause 7.6 – the Due Diligence Environmental Site Assessment dated 17 August 2021 identifies the Site as one which presents a moderate risk of salinity hazard, but due to the minor nature of excavation works proposed, the development is unlikely to encounter the water table. Further detailed investigation was not considered necessary, provided that suitable management strategies are adopted. Having regard to the matters in cl 7.6(2) the Court can be satisfied that the development will not have any undesirable effects on salinity processes.

12. Clause 7.7 – the Site is already serviced or is capable of being serviced for water, electricity, sewerage, stormwater drainage and vehicular access.

13. Clause 7.22 – the Site is identified as 'Waterside' on the Clause Application Map. The Amended DA demonstrates that the activities in the proposed development will not generate any increase in existing background noise levels, and that the criteria in cl 7.22(4)(c) will not be exceeded.

10. in relation to the provisions of Penrith Development Control Plan 2014(PDCP):

1. consistent with the controls in Part 3.5 of PDCP which requires that floor levels on the Subject Site shall be at or above the1% AEP flood level plus 0.5m freeboard, which equates to a level of at least 24.3m AHD:

1. the floor levels of the food and drink premises closest to Andrews Road are 25.1m and 25.55m AHD;

2. the floor level of the service station is 25.7m AHD and all buildings on the northern half of the site sit higher than 26.0m AHD; and

3. the Proposed Development meets the minimum floor level of for habitable rooms in a residential development or for new commercial or industrial levels of 24.3m AHD;

2. the Parties have advised, and I am satisfied, that the Applicant’s amended development application is satisfactory having regard to the remaining provisions of the PDCP and the provisions of s 4.15(1)(a)(iii) of the EP&A Act;

11. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors (see above at [5]) which is a relevant consideration under s 4.15(1)(d) of the EP&A Act, and which the Parties agree have been considered in the Applicant’s amended application.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the Applicant’s development application;

2. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

4. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. 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.

13. The Court notes that:

1. the Respondent has agreed to the Applicant amending its development application to rely on the amended plans and documents which are referenced in condition 1 of Annexure ‘A’; and

2. notwithstanding the provisions of s 50 of the Environmental Planning and Assessment Regulation 2021 the Applicant’s amended plans and documents have been lodged on the NSW Planning Portal.

Orders

14. The Court orders that:

1. pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment to the development application, agreed at $31,000.00;

2. the appeal is upheld;

3. Development consent is granted to Development Application No. DA21/0837 for construction and use of a mixed-use development consisting of a child care centre, swim school, service station, three take away food and drink premises, at-grade car parking, landscaping and subdivision at 1 Renshaw Street, Cranebrook, and associated drainage work in Lot 1 DP 286568, subject to the conditions set out in Annexure ‘A’.

M Chilcott

Commissioner of the Court

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Annexure A

Decision last updated: 02 February 2023