Elite Land Holdings (Clarke) Pty Ltd v Blacktown City Council

[2025] NSWLEC 1572

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elite Land Holdings (Clarke) Pty Ltd v Blacktown City Council [2025] NSWLEC 1572

Hearing dates:

Conciliation Conference 1 August 2025

Date of orders:

13 August 2025

Decision date:

13 August 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Consent DA-18-02454 is modified in the terms set out in Annexure A.

(3)   Development Consent DA-18-02454 as modified by the Court is set out at Annexure B.

Catchwords:

APPEAL — Modification Application — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.56, 8.9, 8.10

Land and Environment Court Act 1979 (NSW), ss 17, 34

Environmental Planning and Assessment Regulation 2021 (NSW), s 113

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

State Environmental Planning Policy (Precincts – Central River City) 2021, ss 4.1, 4.3

State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:

Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223

Elite International Development Pty Ltd v Blacktown City Council [2020] NSWLEC 1022

Category:

Principal judgment

Parties:

Elite Land Holdings (Clarke) Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Kingston (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
Urban Legal (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2024/439788

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s modification application seeking to modify DA-18-02454 (Original Consent). The Original Consent was granted by the Land and Environment Court on 30 January 2020 and approved a staged subdivision creating 137 Torrens title residential lots and three residue lots, demolition, tree removal, dam dewatering, drainage works, earthworks, public road construction, street tree planting and associated works on land identified as Lot 10 in Deposited Plan 1267733, known as 44 Clarke Street, Rouse Hill (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Modification Application

3. The Modification Application (MOD-24-00439) was lodged with the respondent 17 October 2024 pursuant to s 4.56(1) of the EPA Act and sought to amend the Original Consent by seeking to allow registration of Precinct B separate to Precinct A, construction of a retaining wall adjacent to Drinkwater Avenue in lieu of battering, construction of temporary turning heads, and associated works (Modification Application).

4. On 26 November 2024, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent’s deemed refusal of the Modification Application.

5. The proceedings were commenced within the appeal period prescribed by s 8.10 of the EPA Act.

6. Following the termination, on 6 June 2025, of a conciliation conference between the parties under s 34 of the LEC Act, the matter was listed for hearing.

7. Prior to the hearing, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement reached is for the Modification Application to be approved (subject to conditions of consent) and subject to amendments including the provision of:

1. additional swept paths;

2. a construction management plan; and

3. additional detailed material in relation to the construction of the temporary retaining walls,

(Amended Modification Application).

8. A signed s 34 agreement was provided to the Court on 22 July 2025. The s 34 agreement is supported by an agreed jurisdictional statement provided to the Court on 29 July 2025. The parties subsequently requested that the matter be listed for a further s 34 conference. The Court granted this request, and the matter was listed for a s 34 conciliation conference on 1 August 2025, following which the hearing was vacated. I presided over this conciliation conference.

9. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Jurisdictional considerations

10. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow:

Owner’s consent

11. The applicant is the registered proprietor of the Subject Land and provided consent to the lodgement of the Modification Application (see Class 1, tabs 1 and 2).

12. For completeness, I note that the applicant for the Modification Application was Mepstead & Associates Pty Ltd (see Class 1, tab 1). However, the parties have confirmed, and I accept that, Mepstead & Associates Pty Ltd lodged the application as agent for the applicant in these proceedings (being also the registered proprietor of the Subject Land) for the purposes of Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [42]-[43] and [54].

Environmental Planning and Assessment Act 1979(NSW)

13. As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged with the respondent pursuant to s 4.56 of the EPA Act.

14. Section 4.56 of the EPA Act relevantly provides that a consent authority may modify development consent granted by the Court if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.56 is addressed below.

15. For the purposes of s 4.56(1)(a), I am satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted for the following reasons:

1. the modifications proposed primarily relate to changes in the timing of works to facilitate the economic and orderly development of Precinct B; and

2. only works relating to the provision of a temporary retaining wall and turnings heads are proposed which are minor changes and do not amount to a radical transformation of the development as approved by the Original Consent.

16. For the purposes of s 4.56(1)(b) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been notified in accordance with a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of application for modification of development consent.

17. The Modification Application was notified by the respondent between 5 and 19 February 2025 in accordance with the respondent’s Community Engagement Strategy and Community Participation Plan 2024-28. No submissions were received. As such, the Court is satisfied that the requirements under s 4.56(1)(b) of the EPA Act have been appropriately addressed.

18. For the purposes of s 4.56(1)(c) of the EPA Act, the parties have confirmed that no submissions were received in respect of the development application the subject of the Original Consent, and this provision is therefore satisfied.

19. On the basis that no submissions were received in response to the notification, s 4.56(1)(d) is not relevant.

20. In respect of s 4.56(1A) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case the Court) for the grant of the Original Consent (see Elite International Development Pty Ltd v Blacktown City Council [2020] NSWLEC 1022).

State Environment Planning Policy (Precincts – Central River City) 2021

21. The Subject Land is zoned part R2 Low Density Residential and part RE1 Public Recreation under the Blacktown Growth Centres Precinct Plan (Precinct Plan) contained in Appendix 11 of the State Environment Planning Policy (Precincts – Central River City) 2021 (Precincts SEPP). Accordingly, the development the subject of the Amended Modification Application is permitted with consent under the Precinct Plan.

22. The objectives of the R2 and RE1 zones are extracted below:

R2 Low Density Residential

•  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 residents 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 well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

RE1 Public Recreation

•  To enable land to be used for public open space or recreational purposes.

•  To provide a range of recreational settings and activities and compatible land uses.

•  To protect and enhance the natural environment for recreational purposes.

23. The parties agree, and I accept, that the Amended Modification Application is consistent with the objectives of these zones.

24. The Subject Land is subject to a minimum lot size for a dwelling house of 300m² (s 4.1AB(3)(b) of the Precinct Plan), a residential density of 15 dwellings per hectare (s 4.1B of the Precinct Plan), and maximum building height of 9 metres (s 4.3 of the Precinct Plan). The parties agree, and I accept, that the Amended Modification Application continues to comply with these standards.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. I accept the parties’ submission that it is satisfied that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and are satisfied in relation to the Amended Modification Application on the basis of the assessment carried out in the determination of the Original Consent, which is unchanged by the proposal.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Modification Application as the Subject Land is located within the Hawkesbury-Nepean Catchment.

27. The parties agree, and I accept, that the proposed modification is capable of being approved having regard to the matters listed for consideration and satisfaction in Ch 6 of the BC SEPP. This is primarily on the basis of the proposal’s consistency with the aims of Ch 6, distance between the Subject Land and the Hawkesbury-Nepean River, and compliance with the requirements set by the respondent’s relevant engineering specifications set out in condition 2.7 of the Agreed Conditions (see also Statement of Environmental Effects prepared by The Planning Hub, dated 3 September 2024 (SEE)).

Conclusion

28. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

29. The Court notes that the respondent, as the relevant consent authority has agreed, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the applicant amending Modification Application MOD-24-00716 to rely on the following amended plans and documents:

i. Traffic Plans, Drawing No. 18S0610-CS-01-V8, dated 15 May 2025, prepared by PeopleTrans, including (7 Sheets):

1. Sheet 1 of 7, Precinct B Concept Layout;

2. Sheet 2 of 7, Precinct B Swept Path Assessment;

3. Sheet 3 of 7, Precinct B Swept Path Assessment;

4. Sheet 4 of 7, Precinct B Swept Path Assessment;

5. Sheet 5 of 7, Precinct B Swept Path Assessment;

6. Sheet 6 of 7, Clarke Street Swept Path Assessment;

7. Sheet 7 of 7, Precinct B Signage and Line Marking Plan.

ii. Construction Traffic Management Plans, Drawing No. 18S0610-CS-04-V5, dated 15 May 2025, prepared by PeopleTrans, including (3 Sheets):

1. Sheet 1 of 3, Concept Layout;

2. Sheet 2 of 3, Swept Path Assessment;

3. Sheet 3 of 3, Swept Path Assessment.

iii. Structural Drawing for Proposed Civil Works Structures, prepared by Geotron Engineering Consultants, including (4 Sheets):

1. Cover Sheet, Drawing No. RW10.00, dated 17 April 2025, Revision 2;

2. Structural Notes, Drawing No. RW10.01, dated 13 March 2025, Revision 1;

3. Temporary Retaining Wall Plan, Drawing No. RW10.02, dated 13 March 2025, Revision 1;

4. Temporary Retaining Wall Details, Drawing No. RW10.03, dated 17 April 2025, Revision 2.

iv. Road Safety Audit – Precinct B Retaining Wall, prepared by AMWC RSA, dated 25 February 2025, Reference JN25047_Mepstead 14 Clarke PrB RW_AMWC RSA Report-01_Rev02.

v. Plan of Proposed Subdivision, prepared by Steven Richard Gott, dated 3 September 2024, Reference 200756-02 SUB, including (11 Sheets):

1. Plan of Proposed Subdivision of Lots 10 in DP1267723 – Precinct B Staging Sheet (Sheet 1 of 1);

2. Plan of Proposed Subdivision of Lot 10 in DP1267723 – Precinct B Stage 1 (Sheet 1 of 2);

3. Plan of Proposed Subdivision of Lot 10 in DP1267723 – Precinct B Stage 1 (Sheet 2 of 2);

4. Plan of Proposed Subdivision of Lot 142 in DP…… (Stage 1 Residue of Precinct B) – Precinct B Stage 2 (Sheet 1 of 2);

5. Plan of Subdivision of Lot 142 in DP…… (Stage 1 Residue of Precinct B) – Precinct B Stage 2 (Sheet 2 of 2);

6. Plan of Subdivision of Lot 246 in DP…… (Stage 2 Residue of Precinct B) – Precinct B Stage 3A (Sheet 1 of 2);

7. Plan of Subdivision of Lot 246 in DP…… (Stage 2 Residue of Precinct B) – Precinct B Stage 3A (Sheet 2 of 2);

8. Plan of Subdivision of Lot 339 in DP…… (Stage 3A Residue of Precinct B) – Precinct B Stage 3B (Sheet 1 of 2);

9. Plan of Subdivision of Lot 339 in DP…… (Stage 3A Residue of Precinct B) – Precinct B Stage 3B (Sheet 2 of 2);

10. Plan of Subdivision of Lot 247 in DP…… (Stage 2 Residue of Precinct B) – Precinct B Stage 4 and 5 (Sheet 1 of 2);

11. Plan of Subdivision of Lot 247 in DP…… (Stage 2 Residue of Precinct B) – Precinct B Stage 4 and 5 (Sheet 2 of 2);

vi. Stability and Subsoil Drainage Comments, prepared by GeoEnviro Consultancy, dated 27 February 2025, Reference JT20995F-r2(rev)

vii. Concept Civil Engineering Works Drawings, prepared by Mepstead & Associates, including (12 Sheets):

1. Cover Sheet, Drawing List and Locality Plan, Drawing No. DA2000, dated 13 February 2025, Revision D;

2. Erosion and Sediment Control Layout Plan, Drawing No. DA2002, dated 23 July 2024, Revision C;

3. Site Plan, Drawing No. DA2003-1, dated 23 July 2024, Revision C;

4. Site Regrading Plan – Sheet 1 of 2, Drawing No. DA2006, dated 23 July 2024, Revision C;

5. Roadworks and Stormwater Drainage Layout Plan Sheet 1 of 2, Drawing No. DA2100, dated 13 February 2025, Revision F;

6. Road Longitudinal and Typical Sections Road 4, Drawing No. DA2112, dated 25 February 2025, Revision D;

7. Temporary Road Longitudinal and Typical Sections, Temporary Road 15 and Temporary Road 16, Drawing No. DA2118, dated 23 July 2024, Revision A;

8. Proposed Retaining Wall Along Road 4 Plan View and Longitudinal Section, Drawing No. DA2700, dated 13 February 2025, Revision B;

9. Linemarking and Signage Plan, Drawing No. DA2800, dated 24 February 2025, Revision B;

10. Works to be Completed for Precinct B Following Dedication of Road No. 7, Drawing No. DA2900, dated 24 February 2025, Revision B;

11. Staging Plan, Drawing No. SKC208, dated 12 February 2025, Revision C;

12. Drainage Line ZA Longsections, Drawing No. DA3000, dated 30 April 2025, Revision A.

viii. Civil Engineering Comments, prepared by Mepstead & Associates, dated 28 April 2025.

ix. Addendum Traffic Access Report for Temporary Road 15, prepared by PeopleTrans, dated 30 April 2025.

30. The above documents were provided to the Court on 22 July 2025.

Orders

31. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA-18-02454 is modified in the terms set out in Annexure A.

3. Development Consent DA-18-02454 as modified by the Court is set out at Annexure B.

N Targett

Commissioner of the Court

Annexure A (343 KB, pdf)

Annexure B (655 KB, pdf)

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Decision last updated: 13 August 2025