C2526 Pty Ltd v Blacktown City Council

Case •

[2024] NSWLEC 1641

•

15 October 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: C2526 Pty Ltd v Blacktown City Council [2024] NSWLEC 1641
Hearing dates: 5 and 6 August 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction:Class 1
Before: Miller AC
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to staged development application DA23-00246 for removal of trees and a 11 lot Torren Title subdivision in two stages together with 8 residue lots and one lot for road acquisition subject to the conditions of consent at Annexure A.

(3) The exhibits are retained.

Catchwords:

APPEAL – development application – orderly development of land, staged Torrens title subdivision, possible future road widening, integrated development

Legislation Cited:

Biodiversity Conservation Act 2016, s.8.4

Environmental Planning and Assessment Act 1979, ss. 3.15, 4.15, 8.7, 8.15

Roads Act 1993

Land Acquisition (Just Terms Compensation) Act 1991, Div 3 Part 2

Land and Environment Court Act 1979, s 39

Local Government Act 1993

Rural Fires Act 1997, s100B

Environmental Planning and Assessment Regulation 2021, s.23

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Div 2, ss.6.6, 6.8, 8.4

State Environmental Planning Policy (Exempt and Complying Codes) 2008 ss 1.18, 1.19A, 1.20

State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 7, ss 2.3, 2.6, 2.6A, 4.1AB, 4.1AD, 4.1AE, 4.1AF, 4.1B, 4.1C, 5.1, 5.9, 5.10, 6.1, 6.8

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120

Cases Cited:

Micallef v Hawkesbury City Council [2021] NSWLEC 1410

Texts Cited:

Alex Avenue and Riverstone Precinct Plan 2010

Blacktown City Council Growth Centres Precincts Development Control Plan

Category:Principal judgment
Parties: C 2526 Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation:

Counsel:
Mr J Farrell (Applicant)
Mr A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsden Law Group ((Respondent)
File Number(s): 2023/193360
Publication restriction: Nil

JUDGMENT

Introduction

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal of Development Application No. 23-00246 for a staged Torrens Title subdivision of land at Lots 38 – 45 Sec A DP 1654 Bandon Road and Lots 60 – 67 Sec A DP 1654 Dulwich Road, Vineyard by Blacktown City Council (Council). The application, as amended, seeks consent for the removal of trees and an 11 lot Torrens Title subdivision in two stages together with the creation of 8 residue lots (that is, existing lots reduced in size as a result of a proposed new road) and one lot for road acquisition.

  2. The key issue in the appeal is whether the proposed development represents the orderly development of land having regard to the prevailing planning framework. A large part of the site has been identified by Transport for NSW (TfNSW) as potentially required for future road widening. On this basis the Council opposes the grant of consent as it considers that development of the site does not represent the orderly development of land as it does not take into consideration the potential future road widening.

  3. The parties agree that the proposed development is compliant with the prevailing planning framework and all relevant planning controls. Accordingly, I find that the proposed development does represent the orderly development of land being a form of development contemplated by the applicable legislative framework. The proposal does not take account of the potential that the site may, in the future, be required for road widening however this is by no means certain and has not been codified in any planning instrument, notwithstanding that the opportunity exists to do so. In any event should the site be so required in the future, statutory provisions exist in the terms of the Land Acquisition (Just Terms Compensation) Act 1991 (LA Act) to provide appropriate compensation to any future owners.

The Application

  1. The development application was originally submitted to Council on 18 March 2023. The Court granted leave for C2526 Pty Ltd to amend the application on two occasions: 4 June 2024 and 1 August 2024. Accordingly, the application before the Court, as amended, comprises:

  1. The subdivision of the existing lots into 11 residential lots, 8 residue lots and 1 lot for road acquisition, removal of trees, construction of roads, dam dewatering and associated civil works over three stages:

  1. Stage 1: delivery of 9 residential lots, 8 residue lots as a result of road dedication, one residue parcel for a temporary on-site detention basin as well as for an easement for public access for a temporary road

  2. Stage 2: removal of temporary road and delivery of 2 residential lots, and

  3. Stage 3: decommissioning of temporary on-site detention basin and associated civil works.

  1. As a result of the amendments, the Council now agrees that the merit issues in the proceedings have been resolved, subject to conditions of consent, with the exception of Contention 1 which provides that “the development should be refused because it does not represent the orderly development of land and does not take into consideration future road widening of Bandon Road proposed by TfNSW”.

The Site and Locality

  1. The subject site comprises Lots 38-45 and Lots 60-67 in Sec A DP 1654. Lots 38-45 are located with frontage to Bandon Road and Lots 60-67 to the south with frontage to the unformed Dulwich Road within the locality of Vineyard (refer Figure 1 below). The site has a total area of 4,494m2.

  2. C2526 Pty Ltd is the owner of Lots 38-45 which front Bandon Road however is not the owner of the southern lots (Lots 60-67) which are owned by a separate party Ms Muriel Joan Chapman. Ms Chapman has however provided consent for the lodgement of the subject application over her land.

  3. The site is rectangular in shape with a primary frontage to Bandon Road to the north. A rural dam and remnant sheds are located to the south. The site is within the ‘Riverstone Scheduled Lands’ which comprises a mix of informal dwellings and more established properties and some unformed roads. Where dwellings have been constructed they are typically situated on several adjoining properties due to the narrow width of the subdivided lots.

Figure 1: Site the subject of the DA (Source: Ex 1)

  1. The proposed subdivision is as shown in Figure 2 (Stage 1) and Figure 3 (Stage 2) below. The major works which form the subject application are located on the northern lots (Lots 38-45) which front Bandon Road with development on the southern lots (Lots 60-67) being limited to the proposed temporary road and tree removal. The new southern lots (proposed lots 111 – 118) are described in the application as residue lots however, as a result of the subdivision, would be provided with direct access to a new public road. It is proposed that at Stage 2 part of the proposed temporary turning head would be returned to Lots 117 and 118 following the construction of the permanent new access road from O’Connell Street (refer Figure 3).

Figure 2: Proposed plan of subdivision – Stage 1 (Ex 3 Tab 4)

Figure 3: Proposed plan of subdivision – Stage 2 (Ex 3 Tab 4)

Planning Framework

  1. The primary environmental planning instrument applying to the site is State Environmental Planning Policy (Precincts – Central River City) 2021 (Precincts SEPP) under which the site is within the Alex Avenue and Riverstone Precinct. The Alex Avenue and Riverstone Precinct Plan 2010 which forms Appendix 7 of the Precincts SEPP (the Precinct Plan) applies to the subject site.

  2. Under the Precinct Plan the site is primarily zoned R2 Low Density Residential in accordance with s 2.3 with a small sliver of land fronting Bandon Road being zoned SP2 (Classified Road).

  3. The subdivision of land is permissible with consent in the R2 zone in accordance with s 2.6.

  4. Demolition is also permissible with consent in the R2 zone pursuant to s 2.6A.

  5. Under s 2.3 a consent authority (including the Court) must have regard to the objectives of the zone in determining whether to grant development consent. The objectives of the R2 zone are:

“To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

To support the wellbeing of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.”

  1. Other provisions contained within the Precinct Plan, that establish the planning framework for development on site, include:

  1. Section 4.1AB (Minimum Lot Sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential) which provides that a minimum lot size of 300m2 applies to the subject site as it is in the area shown on the Residential Density map as having a density of 15. Five (5) of the proposed 11 lots (proposed Lots 101-104 and Lot 201) are consistent with this provision as shown on the proposed plan of subdivision prepared by Mepstead & Associates at Ex C Tab 11.

  2. Notwithstanding s 4.1AB, s 4.1AD (Subdivision resulting in lots between 225-300m2) provides that consent may be granted to lots with an area of less than 300m2 but not less than 225m2 in the R2 zone if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot in accordance with ss 4.1AE or 4.1AF. Six (6) proposed lots (proposed Lots 105 – 109 and 202) seek to rely on this provision and have site areas between 225m2 and 300m2 as shown on the proposed plan of subdivision previously cited at [15(1)] above.

  3. Section 4.1AE (Exceptions to minimum lot sizes for dwelling houses) applies to dwelling lots relevantly on land in the R2 Low Density zone and provides that if a lot has an area of less than 300m2 but not less than 250m2 the minimum dwelling density is 15 dwellings per hectare. While consent is not sought for the erection of dwellings on the proposed lots this provision provides for the erection of dwellings on the proposed lots notwithstanding the application of s 4.1AB.

  4. Section 4.1B (Residential Density) gives effect to the minimum dwelling density on the subject site of 15 dwellings per ha. The proposed development has a density of 25.59 dwellings per ha and therefore complies with this control.

  5. Section 4.1C (Dwellings on Riverstone Scheduled Lands) provides that a dwelling must not be erected on land within the Riverstone Scheduled Lands with a depth that exceeds 35m with the exception of a lot that has direct frontage to relevantly Bandon Road. The subject site is within the area mapped as the Riverstone Scheduled Lands.

  6. Section 5.1 (Relevant acquisition authority) provides that the acquisition authority for land zoned SP2 (Local Road) is the Council if the land is required to be acquired under Division 3, Part 2 of the LA Act (owner-initiated acquisition provisions). As noted above a small sliver of the subject site fronting Bandon Road is so designated.

  7. Section 5.9 (Preservation of trees or vegetation) provides that consent is required for tree removal. Consent is sought for tree removal comprising a total of 137 trees (125 on site and 12 outside of the site with the consent of the adjacent landowner) as part of the subject application as a result of infrastructure works.

  8. Section 5.10 (Heritage conservation) contains provisions in relation to heritage conservation. In accordance with the provisions an Aboriginal Due Diligence report (Ex A Tab 9) has been submitted with the application and confirms that the proposal will not impact on any known or potential Aboriginal objects and is very unlikely to result in impacts to Aboriginal objects.

  9. Section 6.1 (Public utility infrastructure) provides that consent cannot be granted unless the consent authority is satisfied that essential infrastructure is available or adequate arrangements have been made to make it available to the site. A survey has been provided (Tab 8 Ex A) which illustrates services can be available to the site in addition to relevant conditions of consent which satisfy this provision.

  10. Section 6.8 (Development on Riverstone Scheduled Lands) which applies to the site provides that consent cannot be granted unless every lot created by a subdivision has a frontage directly onto a public road and a maximum depth not greater than 35m with the exception of a lot that has direct frontage to, relevantly, Bandon Road. Proposed Lots 105-109 and 202 have a depth less than 35m and therefore comply. Lots 101-104 and 201 have direct frontage to Bandon Road and therefore similarly comply. Residue Lots 111-118 are current lots which are being reduced in size as a result of the proposed new road. Accordingly, these lots are not being ‘created’ for the purposes of this provision.

  1. Notably the subject site is not reserved for public purposes including for road widening in accordance with s 3.15 of the EP&A Act other than the small sliver of land along the Bandon Road frontage which is zoned SP2 Infrastructure and to which s 5.1 (refer [15(6)] above) applies.

Future Road Widening of Bandon Road by TfNSW

  1. The key issue in this matter is whether the application should be refused because as pleaded by the Council it does not represent the orderly development of land and does not take into consideration the future widening of Bandon Road as proposed by TfNSW.

  2. The subject application was referred by the Council to TfNSW for comment on 5 April 2023. In response TfNSW advised as follows:

“TfNSW has reviewed the submitted information and does not support the application in its current form. TfNSW notes that the subject property is within an area under investigation for the proposed Bandon Road corridor between Richmond Road and Windsor Road.

The investigations completed to date indicate that part of the subject property (Lots 38, 39, 40, 41, 42, 43, 44, 45, 65, 66, 67 Section A DP1654) would be required for the project as shown by pink colour on the below Aerial – “X” and Approval Plan No. 7157 040 SP 2405 – sheets 7 & 8.

Please note, the proposal encroaches on the area affected by the road proposal.”

  1. Consistent with the above, it is agreed by the parties that the site is within an area under investigation for the proposed Bandon Road Corridor between Windsor and Richmond Roads as part of the North West Growth Centre Road Network Strategy. Figures 4 – 6 below illustrate the investigation area (shown pink) as identified by TfNSW.

Figure 4: Overlay of site on TfNSW Bandon Road Corridor Investigation area (Source: Amended Statement of Facts and Contentions (SOFAC))

Figure 5: TfNSW Bandon Road Corridor Sheet 7 (Source: Amended SOFAC)

Figure 6: TfNSW Bandon Road Corridor Sheet 8 (Source: Amended SOFAC)

  1. The Bandon Road Corridor plans as shown above were approved by TfNSW’s Director West Precinct on 18 December 2019 however no further action has been taken since to formally reserve the land for road widening. To be clear, the land is not shown on the North West Growth Centre Land Reservation Acquisition Map under the Precincts SEPP and no measures, such as a road widening order, have been taken in accordance with the provisions of the Roads Act 1993.

  2. The Precincts SEPP was made on 1 March 2022 and the Blacktown City Council Growth Centres Precincts Development Control Plan amended in March 2022. Accordingly, both plans were made (or amended) after the TfNSW Bandon Road Corridor plans were publicly known and yet do not incorporate any reservations or formal identification of the proposed widening.

  3. It is an agreed fact that TfNSW identified, on its website on 21 May 2024, that “the NSW Government had committed $75 million to progress the planning for the Bandon Road corridor project” and that “with the funding allocation now identified Transport for NSW is commencing the concept design phase”.

  4. Further on 14 June 2024 TfNSW updated its website in respect of Bandon Road as follows:

“Bandon Road

Project status: planning and development of priority sections of Bandon Road upgrade at Vineyard is underway.

The proposed Bandon Road Corridor connects Richmond Road, Marsden Park and Windsor Road.

The progression of the priority sections between Windsor Road and the T1 rail line will improve access and connections to the Riverstone West Precinct and the Vineyard precinct.”

  1. TfNSW provided additional information is respect of the project in response to a subpoena (Ex D) which indicates at Tab 5 that the subject site forms part of Section 3 of the Bandon Road project which is ‘subject to future funding’ with timing as set out below.

Activities

Program

Funded

Yes / No

Concept Design and Review of Environmental Factors

Nov 2024 – Mid 2026

Yes

Display REF, REF Subs & determination

Planning Approval

July – Dec 2026

Dec 2026

Yes

Final Business Case

July 2026 – Mar 2027

Yes

Detailed Design

Apr 2027 – Sept 2028

No

Procurement

Oct 2028 – Jun 2029

No

  1. Accordingly, it is clear that while funding is allocated for concept design, planning and the final business case, the detailed design and procurement of the project is not currently funded. Further the design and final land take within the investigation area is not currently certain.

Expert evidence

Town Planning Evidence

  1. Expert town planning evidence was given in the proceedings by town planners: Mr Adam Byrnes engaged by C2526 Pty Ltd and Ms Judy Clark engaged by the Council in the form of a joint expert report filed 15 July 2024 (Ex 3). The town planners were directed to confer on the contentions with respect to the future road widening (contention 1), streetscape (contention 2), owner’s consent (contention 3), and the requirement that future works within Bandon Road have approval from TfNSW (contention 4).

  2. The town planner’s joint expert report confirmed that contentions 2, 3 and 5(b) had been satisfactorily addressed by either the submission of additional information, amendments to the proposed plans or could be addressed by conditions of consent.

  3. In respect of Contention 1, the town planning experts disagreed. Ms Clark noted that 14 of the proposed 19 lots (74%) are affected by the proposed road widening and that “in the circumstances and taking into account the level of affectation”… “the proposal does not promote the orderly and economic development of land pursuant to the Objects of the EP&A Act Clause 1.3(c)” (Ex 3 p 7). She refers to the TfNSW subpoena response information and considers that “there is a demonstrated level of certainty about the timing and commitment to the planning stages of Stage 3 of the Bandon Road widening and it cannot be assumed that widening would not be commenced within the next 10 years” (Ex 3 p 7). She considers that “the social, practical and economic consequences of acquisition of 14 lots of subdivided residential land that are likely to be occupied by recently built residential developments are unacceptable, and not in the interest of persons who purchase the subdivided lots in the future in circumstances where such impacts could be avoided” (Ex 3 p 8). Further she opines that the development is not in the public interest in accordance s 4.15(1)(e) of the EP&A Act.

  4. Mr Byrnes instead opines that “as the section of Bandon Road adjacent to the subject site has only begun the concept design phase… there is no certainty or imminence that the Bandon Road works will occur” (Ex 3 p 9). Further he considers that “the concept or detailed design phases could determine that the subject site is not required for the Bandon Road works” (Ex 3 p 10). Mr Byrnes also considers that “in the interest of orderly development the application should be determined on the applicable planning controls” (Ex 3 p 11). His view is that “to refuse the application on the basis of undesigned, unfunded and unplanned projects, and that are not programmed to be resolved until as late as 2029 would be inconsistent with the principles of orderly development” (Ex 3 p 11).

  1. Both town planning experts refer to Micallef v Hawkesbury City Council [2021] NSWLEC 1410 (Micallef) as a relevant case. This matter considers the orderly development of land for a childcare centre on a site on Bandon Road similarly identified by TfNSW as partly within an area under investigation for the proposed Bandon Road corridor. The facts of the case are that the proposal could not be constructed as proposed in the event that the road widening anticipated by TfNSW were to occur. In her judgement at paragraph [71], AC Morris concluded that:

“it is apparent that Bandon Road will be upgraded in some form however until such time as funding is provided to advance the design beyond concept stage, it is not possible to ensure that the land identified by TfNSW will definitely be required for that upgrade works …”

  1. Ms Clark has the view that events have moved on since the Micallef decision with further funding for the Bandon Road project allocated (refer [22] above) bringing more certainty that the site will be required for road widening. Mr Byrnes on the other hand takes a similar view to AC Morris which in his words is “that there is no final design completed for the Bandon Road works and acquisition, nor has the Vineyard Stage 2 precinct been released, and that only once those two matters are accomplished will it be an appropriate time to state that certainty has been reached and only then would it be appropriate to consider whether the application should proceed” (Ex 3 p 9).

  2. In oral evidence Ms Clark was requested to opine on whether the proposal would represent the disorderly development of land if the DA was approved but the subdivision not ever registered, that is, the approval served to ‘firm up’ the development potential of the site in the case where acquisition resulted in the future. She agreed that in that case the proposal would not represent a disorderly development of land however Mr Byrnes agreed that to his knowledge there is no proposal by C2526 Pty Ltd not to proceed with the subdivision at this time.

  3. No oral evidence was given by the town planners in respect of any of the other contentions all matters having otherwise been agreed.

Engineering Evidence

  1. Expert engineering evidence was also given in the proceedings by: Mr Alan Denniss engaged by C2526 Pty Ltd and Mr David Tetley employed by the Council in the form of a joint expert report filed 15 July 2024 (Ex 4). The engineers conferred in relation to engineering matters (contention 4), road design levels (contention 5(a)) and the requirement for a turning head plan and swept paths (contention 5(c)).

  2. The engineering joint report confirmed that contentions 4, 5(a) and 5(c) had been satisfactorily addressed by either the submission of additional information, amendments to the proposed plans or could be addressed by conditions of consent.

  3. No oral evidence was given in the proceedings by the engineering experts all matters having been agreed.

Consideration

  1. In respect of Contention 1, being the key issue in this case, I agree with Mr Byrnes (and the decision of AC Morris referred to in paragraphs [30 to 31] above) that based on the information presented to the Court there is currently no certainty or imminence that the Bandon Road works will occur and, if so, in what form. Accordingly, there is no certainty regarding whether the subject site, either in total or in part, will be required for the project. The TfNSW investigation area, while known, has no statutory force and should not be given determinative weight in respect of the current application. I also note that TfNSW has not sought to be joined in these proceedings.

  2. Further I agree with Mr Byrnes that the subject application should be determined based on the applicable planning controls which establish a planning framework that clearly contemplates the proposed form of development. I note that as agreed by the parties the application as amended is wholly compliant. Accordingly, I find that the proposal does represent the orderly and economic development of land. In respect of any potential future acquisition, I note that appropriate processes exist to ensure that any future landowner is compensated in accordance with the LA Act. I further do not agree with Ms Clark that the proposed development is not in the public interest being entirely in accordance with the prevailing planning framework.

  3. During the course of the proceedings it became apparent that there was an issue between the parties in respect of a condition of consent (condition 2.1.2) proposed by the Council. The proposed condition provides that:

prior to the issue of any subdivision certificate or construction certificate the approved subdivision plan shall be amended to consolidate residue lots 111-118 into a single residue lot (Lot 111)

  1. Notably proposed Lots 111 – 118 are described in the application as residue lots with the only works on this part of the site being the proposed new temporary road and associated tree removal. These lots are also in the separate ownership of Ms Chapman as outlined at [7] above.

  2. I received written submissions from the parties following the hearing on this matter. The Council argued that the condition is reasonable and should be imposed in the circumstances. C2526 Pty Ltd’s primary position is that the condition is unreasonable and unnecessary and should be deleted. If this primary position is not agreed however C2526 Pty Ltd proposed an alternative condition 14A as follows:

14.1A The applicant must prepare and provide to Council for approval an instrument, substantially on the terms set out below and compliant with the requirements of NSW Land Registry Services, which will create a restrictive covenant pursuant to section 88E of the Conveyancing Act 1919 on the residue lots 111 – 118 in respect of development for the purposes of dwelling.

The restrictive covenant must require that a dwelling must not be erected on the land unless the depth of the lot does not exceed 35m as provided for by clause 4.1C of Appendix 7 of the State Environmental Planning Policy (Precincts – Central River City) 2021, or any equivalent and/or successive environmental planning instrument.

The restrictive covenant must provide that the covenant cannot be released, varied or modified without the Council’s consent.

These provisions must be put into effect prior to the release of the subdivision certificate and the applicant must ensure that the restrictive covenant is registered with the plan of subdivision for the development.

  1. The Council’s position is that Lots 111 – 118 inclusive are new lots that as a result of the proposed development would have frontage to a new road but that no assessment has been undertaken of their suitability for residential development. Further the Council argues that the proposed lots do not incorporate appropriate stormwater or other infrastructure to facilitate orderly residential development but that it is possible that the lots could be individually sold and then developed for residential purposes as complying development under State Environmental Planning Policy (Exempt and Complying Codes) 2008 (Codes SEPP) on the basis that they would have lawful access to a public road. Council has also provided advice that C2526 Pty Ltd’s alternative condition 14.1A would not have the effect of preventing the issuing of a complying development certificate for housing on the lots as it is not certain that the restrictive covenant required by the condition would not be suspended to the extent necessary to enable the complying development to be carried out (as provided for under cl 1.20(2) of the Codes SEPP). This is because it would not be a “covenant imposed by a council, or that a council requires to be imposed” being a requirement of the Court rather than the council in this instance.

  2. C2526 Pty Ltd’s position is that proposed condition 2.1.2 is unnecessary and unreasonable on the basis that the matters sought to be addressed are not contentions in the proceedings and that the condition effectively amends the application late in the proceedings without any forewarning. Secondly it argues that the concern to be addressed by the condition relates to hypothetical future development and is not sourced in any identifiable planning controls. Thirdly C2526 Pty Ltd states that it is not the owner of Lots 111 – 118 and that the requirement to consolidate numerous lots is onerous, unforeseen and has the capacity to lead to disagreement or dispute with the landowner and that this is not orderly development. Fourthly C2526 Pty Ltd argues that there is already a barrier to the issue of complying development certificates (CDC’s) over Lots 111 - 118 as cl 1.18 of the Codes SEPP sets out general requirements for a complying development including notably:

1.18 General requirements for complying development under this Policy

(1) To be complying development for the purposes of this Policy, the development must—

…..

(d) before the complying development certificate is issued, have an approval, if required by the Local Government Act 1993 (LG Act), for—

(i)  an on-site effluent disposal system if the development is undertaken on unsewered land, and

(ii)  an on-site stormwater drainage system, and

(e) before the complying development certificate is issued, have written consent from the relevant roads authority (if required under section 138 of the Roads Act 1993) for the building of any kerb, crossover or driveway, and

  1. In addition, C2526 Pty Ltd refers to potential restrictions under cl 1.19A of the Codes SEPP, which restricts complying development on bushfire prone land. C2526 Pty Ltd states that these provisions make it difficult if not impossible for a CDC to be issued in respect of the residue lots and that if an existing lot owner can obtain a CDC they will need to obtain an approval from the council first. Should this argument not be accepted by the Court C2526 Pty Ltd has sought to have the alternate condition 14A reproduced at [43] above imposed.

  2. I agree with C2526 Pty Ltd that there are significant impediments to the issue of a complying development certificate on Lots 111 – 118 and that approvals would likely be required from Council in accordance with the LG Act and the Roads Act 1993 prior to this occurring. If these approvals are able to be gained by a lot owner then development in accordance with the Codes SEPP is technically possible, although I consider unlikely given the existing lot configuration. Notwithstanding this, development which is in accordance with an applicable environmental planning instrument (EPI) including the Codes SEPP is available to the landowner.

  3. Accordingly, for the reasons outlined above I consider that the imposition of condition 2.1.2 is unreasonable and unnecessary in the circumstance of the case and that the Council’s concern regarding complying development is unfounded. In respect of C2526 Pty Ltd’s alternate condition, given my view outlined above and uncertainty regarding the enforceability of the proposed restrictive covenant as outlined by the Council, I consider the imposition of the proposed alternate condition 14A unnecessary and uncertain. I therefore agree with C2526 Pty Ltd’s primary position and do not impose proposed condition 2.1.2.

  4. All other conditions are agreed by the parties.

Outcome of the Appeal

  1. For the reasons set out above, the Council’s contention that the proposed development should be refused on the basis that the development does not represent the orderly development of land and does not take into consideration future road widening of Bandon Road proposed by TfNSW is found to be unreasonable and unjustified. I find that, contrary to the Council’s position, the proposal does represent the orderly development of land and that the development is in public interest being entirely in accordance with the prevailing planning framework. In respect of any potential future acquisition, I note that appropriate processes exist in the terms of the LA Act to ensure any potential future landowners are appropriately compensated should acquisition ultimately be required.

  2. The remaining contentions have been resolved either by the provision of further information, by agreed conditions of consent, or by agreement of the experts. There are no other issues raised by the Council. In addition, the following jurisdictional matters are satisfied:

  • Owner’s consent to the application has been provided in accordance with the requirements of s 23(1) of the Environmental Planning and Assessment Regulation 2021 (EP&A Reg).

  • The application is integrated development requiring an approval under s 100B of the Rural Fires Act 1997. The NSW Rural Fire Service issued its General Terms of Approval (GTAs) and a Bushfire Safety Authority on 7 June 2021 and amended GTAs on 10 May 2023. The GTAs and recommendations of an Updated Bushfire Assessment are included in the conditions of consent at Annexure A. Accordingly the Court can exercise the role of the NSW Rural Fire Service under s 39(6) of the Land and Environment Court Act 1979 (LEC Act).

  • The subject site is subject to a biodiversity certification order therefore in accordance with s 8.4(3) of the Biodiversity Conservation Act 2016 no further assessment in this regard is required.

  • Consideration has been given as to whether the site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). A Soil Salinity Assessment (Ex A Tab 5) and Stage 1 Preliminary and Stage 2 Detailed Site Investigation (Ex A Tab 7) have been provided which conclude that the site is not contaminated.

  • The site is in the Hawkesbury-Nepean Catchment and therefore Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies. The Council raised no contention concerning any matters in the BC SEPP. Based on the submitted documentation including the Statement of Environmental Effects (Ex B Tab 1), Flood Impact Assessment (Ex C Tab 7), Dam Dewatering Assessment (Ex A Tab 7), Stormwater Management Plan (Ex B Tab 4), Waste Management Plan (Ex C Tab 10), Updated Construction Management Plan (Ex C Tab 10), Groundwater Assessment Report (Ex B Tab. 17), Amended Civil Engineering Plans (Ex C Tab 2), Flood Impact Assessment (Ex C Tab 7) and the Engineering Joint Expert Report (Ex 4) I have considered and am satisfied of the relevant matters in Part 6.2, Division 2, ss 6.6 and 6.8 of the BC SEPP.

  • The relevant matters outlined in s 2.120 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) have been considered by virtue of the Traffic Noise Assessment (Ex C Tab 3) and Traffic and Parking Assessment Report (Ex B Tab 8).

  1. Development consent should therefore be granted, subject to the conditions of consent that are agreed by the parties with the exception of proposed condition 2.1.2.

  2. The Court orders that:

  1. The appeal is upheld

  2. Development consent is granted to staged development application DA23-00246 for removal of trees and a 11 lot Torren Title subdivision in two stages together with 8 residue lots and one lot for road acquisition subject to the conditions of consent at Annexure A.

  3. The exhibits are retained.

H Miller

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 15 October 2024

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Micallef v Hawkesbury City Council [2021] NSWLEC 1410