Great River NSW Pty Ltd v Minister for Planning and Public Spaces

[2022] NSWLEC 1162

Land and Environment Court

New South Wales

Medium Neutral Citation:

Great River NSW Pty Ltd v Minister for Planning and Public Spaces [2022] NSWLEC 1162

Hearing dates:

7 December 2021, 2 March 2022

Date of orders:

31 March 2022

Decision date:

31 March 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the development application lodged on the NSW Planning Portal on 4 March 2022 and filed with the Court on the same date.
(2) The appeal is upheld.
(3) Development consent is granted for the Torrens title subdivision of three lots at 14-98 Old Castlereagh Road, Castlereagh into four environmental lots and one residual lot, and the subdivision of the residual lot into 93 Community title lots and one community association lot, across 13 development stages with associated earthworks, road works and landscaping, subject to the conditions of consent in Annexure A.
(4) Exhibits 1, 3-16 are returned and Exhibits A-K, 2, and 17 are retained.

Catchwords:

APPEAL – development application – subdivision of land – Torrens title subdivision and community title subdivision – Penrith Lakes Scheme – adequacy of flood evacuation measures – all contentions resolved

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

State Environmental Planning Policy (Penrith Lakes Scheme) 1989, cll 22, 23, 31, 33, 34, 36

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Ch 5, cl 5.8

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

Texts Cited:

Penrith Lakes Development Control Plan Stage 1 (November 2021)

Category:

Principal judgment

Parties:

Great River NSW Pty Ltd (Applicant)
Minister for Planning and Public Spaces (Respondent)

Representation:

Counsel:
A Galasso SC with M Seymour (Applicant)
A Pickles SC with T March (Respondent)

Solicitors:
Mills Oakley (Applicant)
Department of Planning, Industry & Environment (Respondent)

File Number(s):

2021/204069

Publication restriction:

No

Judgment

1. COMMISSIONER: In an area 50km west of the Sydney CBD in the Nepean River floodplain, land identified as the Penrith Lakes Scheme is undergoing rehabilitation works following the decommissioning of a quarry. The land is the subject of a site specific state planning instrument, and has been undergoing redevelopment into a regional lake system and park for public recreation, ponds and wetlands providing water treatment and wildlife habitat and includes land zoned for residential, tourism and employment uses. This appeal concerns a development application for the subdivision of a site predominantly zoned for employment in the south eastern corner of that land. The development application was initially lodged by Great River NSW Pty Ltd (Great River) with the Minister for Planning and Public Spaces (Minister) on 18 January 2019, and has undergone a number of amendments since that time. On 16 July 2021, following the expiry of the period after which a development application is deemed to be refused, Great River lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The hearing initially commenced on 7 December 2021, at which time an adjournment was given to allow Great River to obtain certification from the Planning Secretary concerning the provision of designated State public infrastructure, and to obtain further information regarding the assumptions and inputs used in the Hawkesbury-Nepean Valley Flood Management Taskforce Modelling.

3. Following the resumption of the adjourned hearing in March 2022, further amendments to the development application were made. The amendments to the development application were lodged on the NSW Planning Portal on 4 March 2022 with the agreement of the Minister, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000.

4. The proposed development, as amended, is for a Torrens title subdivision of 14-98 Old Castlereagh Road, Castlereagh into four lots with a community title subdivision of a fifth large residue lot into 93 community title lots with sizes ranging from 2000m² to 20,238.2m² and one community association lot. A further residue lot remains after the community title subdivision, which will become a public road that connects the site to both Old Castlereagh Road and Lugard Street, and provides two internal loop roads. The proposed development also includes an updated Flood Emergency Response Plan (FERP) that has an evacuation trigger of 3-hours and a vehicle cap, and will be enforceable through the community title scheme. The proposed development also includes two vegetation management plans, one which will be registered on the Torrens title lots 200-203, and the other will be registered on the community title scheme, which will provide a structure for the long term management of the land zoned Environment.

The Minister’s position and the outcome of the appeal

5. As a result of the amendments to the development application, the Minister agrees that the contentions it raised on the appeal have now been resolved, and that there are no contentions that remain outstanding that would warrant refusal of the development application. The Minister now contends that the development application is capable of being approved, subject to conditions.

6. I am nevertheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made by the local residents, and the public interest.

7. For the reasons that are set out below, I accept the submissions made on behalf of the parties that the matters that remained outstanding in the joint reports have been adequately addressed through the amendments to the development application, and that there are no contentions that remain that warrant refusal of the development application. The development application seeks to achieve the planning intent for the employment zone by the subdivision of land within an area that is cleared and currently undergoing rehabilitation. The two vegetation management plans will ensure that the two areas of biodiversity value, zoned environment, will be enhanced and restored, and an appropriate evacuation plan is set out in the FERP. As such, I consider that the proposed development is suitable for the site and does not have any unacceptable impacts.

The site and the locality

8. The site is described as 14-98 Old Castlereagh Road, Castlereagh, legally known as Lots 1, 2 and 3 in Deposited Plan 1263486. It is irregular in shape and has an area of approximately 49 hectares.

9. The site is bound by Old Castlereagh Road to the north, existing industrial developments and Lugard Street to the east, existing industrial developments and the Nepean River to the south and vacant land associated with the Penrith Lakes Scheme to the west. The site is highly disturbed and has recently been filled in the course of rehabilitation works, which are occurring on the site following its previous use as a tailings pond for quarrying. The works are expected to take between 1 and 3 years to complete.

10. The site contains limited native vegetation, along Castlereagh Road and in the area along the Nepean River.

11. Flood mapping for the site shows that the 1 in 100 probability flood would reach a peak of 25.8 AHD. The entire precinct will be at 27 AHD following the completion of the rehabilitation works, and will not be directly affected by the flood. However, the evacuation route along Castlereagh Road would be cut by floodwaters around Boundary Creek, where the road has a low point of 24.2 AHD.

12. Development in the locality is characterised by a mix of recreational and low density residential and industrial uses, and farmlands.

Planning framework

13. The development of the site is subject to an environmental planning instrument that is specific to the Penrith Lakes Scheme, the State Environmental Planning Policy (Penrith Lakes Scheme) 1989 (SEPP 1989).

14. The SEPP 1989 was repealed on 1 March 2022 by the commencement of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP 2021). Chapter 5 of the SEPP 2021 concerns the Penrith Lakes Scheme. However, cl 5.8 of the SEPP 2021 contains a savings provision for development applications that were lodged prior to its commencement, such that the application must be determined as if Chapter 5 of the SEPP 2021 had not commenced. For the purpose of determining the development application the subject of the appeal, therefore, the relevant instrument is SEPP 1989.

15. Pursuant to the SEPP 1989 the majority of the site is zoned Employment, with the areas along Old Castlereagh Road and along the Nepean River zoned Environment.

16. Clause 22 of the SEPP 1989 concerns development consent for development in the land zoned Employment, and cl 23 concerns development consent for development in the land zoned Environment, as follows:

22 Development on land zoned Employment

Development consent must not be granted for development on land zoned Employment unless the consent authority has considered the following—

(a) a water quality management plan and water operations plan for the Penrith Lakes Scheme that are endorsed by the Planning Secretary as being appropriate for the Scheme,

(b) (Repealed)

(c) a traffic and transportation plan that includes proposals about the management of traffic impacts caused by the development,

(d) whether a stable foundation exists or can be developed for the development,

(e) whether the existing development platform (including subgrade) is or can be adequately protected from scour by the discharge of a 1:100 ARI (average recurrence interval) flood event,

(f) whether the proposed development appropriately allows for potential differential settlement given the existing geotechnical conditions and the proposed foundation and for the geotechnical conditions present at the site to prevent excessive total and differential settlement.

23 Development on land zoned Environment

Development consent must not be granted for development on land zoned Environment unless the consent authority has considered the following—

(a) whether the development is consistent with a plan of management (if any) for the Penrith Lakes Scheme that is endorsed by the Planning Secretary as being appropriate for the Scheme,

(b) an Aboriginal cultural heritage assessment for the land (being a written report detailing the results of the assessment and recommendations for actions to be taken before, during and after an activity to manage and protect Aboriginal objects and declared Aboriginal places identified by the investigation and assessment) that has been prepared by a suitably qualified person.

17. Clause 31 concerns the grant of consent for earthworks, and requires consideration of a number of matters. They are as follows:

31 Earthworks

…

(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

18. Clause 33 concerns flood planning, and provides as follows:

33 Flood planning

(1) The objectives of this clause are as follows—

(a) to minimise the flood risk to life and property associated with the use of the land,

(b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(c) to avoid significant adverse impacts on flood behaviour and the environment.

(2) Development consent must not be granted for development on land to which this Policy applies that is at or below the flood planning level unless the consent authority is satisfied that the development—

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(3) Development consent must not be granted for development on land zoned Employment, Residential or Tourism unless the consent authority is satisfied that the development will not adversely affect the safe and effective evacuation of the land and the surrounding area.

(4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this Policy.

19. Clause 34 concerns arrangements for designated state public infrastructure for urban release areas, which applies to the site. At cl 34(2), development consent cannot be granted unless certification is provided by the Planning Secretary as follows:

(2) Development consent must not be granted for the subdivision of land in an urban release area unless the Planning Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that land.

20. The term ‘designated State public infrastructure’ is defined in cl 34(5) and includes “State and regional roads”.

21. The site is also subject to a site specific development control plan, the Penrith Lakes Development Control Plan Stage 1 (November 2021) (PLDCP), which applies to the land to which the SEPP 1989 applies.

22. Part 3.1 concerns flood planning and evacuation, and at Section 3.1.1 there are specific flood evacuation considerations as follows:

“1) Development that will increase the number of people on the land below the probable maximum flood (PMF) level at Penrith Lakes covered by this DCP must be consistent with the Flood Response Guideline (if available), or the objective to achieve early site evacuation and/or non-attendance in the event of a flood or probable flood.

2) Development consent must not be granted to development on land below the PMF level that will increase the number of people on the land, unless the consent authority is satisfied that:

a) appropriate systems and processes will be in place to ensure the efficient evacuation of the site and surrounding area and will not adversely impact on the evacuation routes in the Hawkesbury-Nepean Valley floodplain in the event of a flood; and

b) a flood emergency management plan has been prepared.

3) The flood emergency management plan must address the following matters:

a) an overview of the flood risk and resilience of the site and the surrounding area;

b) details the requirements for governance and documentation of flood preparedness and response at Penrith Lakes;

c) measures to be undertaken by occupants of the site to manage the risk to life in the event of a flood;

d) measures to be undertaken by occupants of the site to ensure the efficient evacuation of people in the event of an early flood warning;

e) immediate flood relief and recovery actions to be undertaken by occupants of the site following a flood event or false alarm of a flood event; and

f) long-term review of systems and processes to ensure the efficient evacuation of the site and recovery measures to be undertaken by occupants of the site following a flood event or false alarm of a flood event.

4) Only strata or community title subdivision is permitted, unless measures compliant with provisions 2 and 3 can otherwise be demonstrated.

5) Despite any other provision in the DCP, the consent authority must not grant consent to a development application for development on land below the PMF in the Penrith Lakes precinct unless provisions 1, 2 and 3 are satisfied.”

23. The Flood Response Guideline referred to within Section 3.1.1 has not yet been issued.

24. Part 5.4 of the PLDCP sets out the desired future character for the Employment precinct, and at Section 5.4.3 there are a number of controls for subdivision design. Those controls include a minimum allotment size of 1500m², a minimum frontage of 30m, and a requirement for strata or community title subdivision “unless measures compliant with flood evacuation provisions outlined in Section 3.1.1 can otherwise be demonstrated”. The proposed development meets the controls concerning site frontage and allotment size.

Issues raised on the appeal

25. An Amended Statement of Facts and Contentions was filed on 23 November 2021, following an earlier amendment to the development application. In it, the Minister raised a number of contentions that are now agreed to be resolved.

26. The contentions concern flood evacuation, compliance with flood planning and evacuation controls, compliance with the urban design controls, impacts on the local traffic network, and compliance with the controls concerning stormwater management and water-sensitive urban design. There were also contentions raised concerning the adequacy of the information on the traffic impacts, on the ecological impacts, and on the trees proposed for removal.

Expert evidence

27. Expert opinion evidence was given in joint reports by experts in a range of areas of expertise, as follows.

Geotechnical engineering

28. Evidence concerning the geotechnical issues was given in a joint report by Mr Rex Wightley, a civil engineer employed by the Department of Planning, and Mr David Piccolo, a geotechnical engineer engaged by Great River.

29. Mr Wightley and Mr Piccolo agree that the proposed bulk earthworks and treatment design will ensure that a stable foundation can be developed for the development, and potential total and differential settlement is addressed. As such, they agree that the proposed development addresses the impact of the proposed earthworks on site stability, and that the matters required by cl 22(d) and (f) of the SEPP 1989 are satisfied.

Stormwater management

30. Expert evidence on the stormwater management was given in a joint report by Mr Andrew Dawes, a civil engineer engaged by Great River, and Mr Mark Babister, a civil engineer engaged by the Minister. They agree that the stormwater design complies with the requirements of the Stage 2 Penrith Lakes Water Management Plan, which outlines the requirements for stormwater and water quality objectives, consistent with the requirements of cl 22(a) of the SEPP 1989.

Aboriginal heritage

31. Expert opinion evidence on aboriginal heritage was given in a joint report by Ms Karyn McLeod, an archaeologist engaged by Great River, and Dr Sandra Wallace, an archaeologist engaged by the Minister. They agree that an update to the Aboriginal Cultural Heritage Assessment is required, but that Aboriginal objects are unlikely to exist beneath the surface. Since the time of their joint report, an updated Archaeological Assessment and Aboriginal Cultural Heritage Assessment, prepared by EcoLogical Australia dated 20 December 2021, has been prepared in support of the proposed development.

Ecological impacts

32. Expert opinion evidence on the ecological impact of the proposed development was given in a joint report and a supplementary joint report by Mr Mark Aitkens, an ecologist engaged by Great River, and Mr Ed Cooper, an ecologist engaged by the Minister.

33. They agree that a Biodiversity Development Assessment Report (BDAR) is not required, as the proposed development is a ‘pending or interim planning application’ under the Biodiversity Conservation (Savings and Transitional) Regulations. They agree that a Species Impact Statement is not required in circumstances where an assessment provided by the RPS Group establishes that there is not likely to be a significant impact on threatened species, populations, ecological communities and their habitats. However, they also agree that Vegetation Management Plans are required to manage the environment zoned lands located adjacent to the Old Castlereagh Road, as well as that located in Lots 200 to 203.

Flood modelling and flood evacuation

34. Expert opinion evidence on flood evacuation was given in two joint reports, the latest of which was by Mr Mark Babister, an engineer engaged by the Minister, Ms Ella Harrison, an engineer engaged by the Minister, Mr Steven Molino, an engineer engaged by Great River, and Dr Daniel Martens, an engineer engaged by Great River.

35. They agree on the available evacuation capacity, and that the FERP that was before them in the joint conference should be updated to specify the number of vehicles originating from Nepean Business Park, which is within the determined capacity, and specify an operational trigger to be used to initiate evacuation for the Nepean Business Park. They remained in disagreement concerning the timing for coordinating evacuation, which they agreed would be resolved by community title subdivision, which will allow co-ordinated evacuation across discrete businesses. Both of these matters have now been resolved by the amendments to the proposed development to update the FERP and to include community title subdivision.

Traffic network impacts

36. Expert opinion evidence on the traffic impacts of the proposed development was given in a joint report and a supplementary joint report by traffic consultants Mr Ross Nettle and Mr Graham McCabe, engaged by Great River, and Mr Phil Guo and Mr Jayme Akstein, engaged by the Minister.

37. They remain in disagreement concerning the impact of the proposed development on the local road network, as well as concerning pedestrian safety. These matters are now resolved by conditions of consent, which are explained in more detail below.

Arboriculture

38. Expert opinion evidence on the impact of the proposed development on trees was given in a joint report and a supplementary joint report prepared by Mr Hugh Taylor, an arboricultural expert engaged by Great River, and Ms Catriona Mackenzie, an arboricultural expert engaged by the Minister.

39. Mr Taylor and Ms Mackenzie agree that trees with a medium or high retention value are to be retained with adjustments to the batter slopes to reduce the encroachment impact, which is depicted in the plans that form part of the amended development application. They also agree that three low to medium retention value trees on the western boundary need to be removed for drainage, and 33 trees of low retention value need to be removed for the construction of the entry and exit location on Old Castlereagh Road. No other trees other than these 36 trees are sought to be removed by the proposed development, and any further tree removal will require a separate development application.

40. Mr Taylor and Ms Mackenzie also agree that a detailed site-specific Tree Protection Plan is required to be prepared, which will include tree protection measures for the trees that remain.

Town planning and urban design

41. Expert opinion evidence on the issues concerning town planning and urban design was given in a joint report by Mr Jeff Mead, a consultant town planner engaged by Great River, Mr Mark Broadley, a registered architect and urban designer engaged by Great River, Ms Michelle Niles, a town planner employed by the Department of Planning, and Mr Brian McDonald, a registered architect and urban designer engaged by the Minister.

42. They agree that the updated Nepean Business Park Urban Design Study and Master Plan dated 30 November 2021, which forms part of the proposed development, provides for other land uses that provide facilities or services to meet the day to day needs of workers in the area, in line with the zone objectives, and demonstrates that attractive streetscapes can be provided with adequate tree canopy and with appropriate interfaces between the employment and environment zones. They also agree that a number of matters can be resolved by the imposition of conditions of consent, including requiring a public art strategy and a public domain plan.

Each of the remaining contentions raised by the Minister has been resolved

43. As a result of the amendments made to the development application, the evidence of the experts and the agreed conditions of consent, each of the contentions raised by the Minister in the Amended Statement of Facts and Contentions have been resolved.

Flood evacuation

44. The Minister raised a number of contentions concerning flood evacuation (Pt 1 Contentions 4, 4A, 5 and 6), including that the development application did not demonstrate a safe and effective means of evacuating the land in the event of a flood, and therefore fails to demonstrate compliance with the flood planning and evacuation controls in the PLDCP, or with the objectives of cl 33(1) of the SEPP 1989.

45. I note also that, following the rehabilitation works that are currently ongoing on the site, the resulting land form will be a minimum of 27 AHD, which is above the flood planning level of 26.8 AHD (1 in 100 year flood level of 25.8m plus 1m freeboard), but is below the probable maximum flood level of 32.6 AHD. As such, cl 33(2) of the SEPP 1989 is not strictly applicable, although cl 33(3) nevertheless requires satisfaction that “the development will not adversely affect the safe and effective evacuation of the land and the surrounding area” and section 3.1.1 of the PLDCP applies.

46. The proposed development is now for a community title subdivision, with an amended FERP, which incorporates a revised evacuation trigger (3-hours before the evacuation of surrounding areas) and vehicle caps. The community title subdivision resolves the concerns identified by Mr Babister and Ms Harrison concerning the evacuation of discrete businesses, and Mr Babister, Ms Harrison, Mr Molino and Dr Martens agree on the revised evacuation trigger and the vehicle caps, which will be reviewed and updated once the NSW State Government prepares the “Penrith Lakes Early Warning System” that is envisaged once the Flood Response Guidelines are finalised. As such, they agree that the FERP now provides systems and processes that will ensure efficient evacuation.

47. As a result, the Minister agrees, and I accept, that the proposed development incorporates measures to manage risk to life from flood and to provide efficient evacuation of the site, which will not adversely affect the safe and effective evacuation of the land and surrounding area. As such, the objectives in cl 33(1) of the SEPP 1989 are met, I am satisfied of the matters required by cl 33(3) of the SEPP 1989, and Section 3.1.1 of the PLDCP is similarly satisfied.

Satisfactory arrangements for designated State public infrastructure

48. The Minister raised a contention that the development application does not provide details that satisfactory arrangements for public infrastructure have been made, as required by cl 34 of the SEPP 1989 (Part 1 Contention 7).

49. However, following the entry by the Minister and Great River into a voluntary planning agreement, the Secretary issued a certificate on 25 February 2022 that certifies that satisfactory arrangements had been made for the provision of designated State public infrastructure (which includes state and regional roads).

50. As such, the certification required by cl 34 of the SEPP 1989 has now been provided.

Planning and urban design

51. The Minister also raised contentions that the subdivision plan was not supported by design studies to set a framework for good urban design outcomes, and that the urban design requirements of the PLDCP have not been met (Part 1 Contentions 9 and 10A).

52. The design study has now been provided to set such a framework, in the form of the updated Nepean Business Park Urban Design Study and Master Plan dated 30 November 2021. As set out above, Mr Mead, Mr Broadley, Ms Niles and Mr McDonald agree that this study demonstrates that facilities or services will be available to meet the day to day needs of workers in the area, in line with the zone objectives, and that attractive streetscapes can be provided with adequate tree canopy and with appropriate interfaces between the different zones.

53. As such, the Minister agrees, and I accept, that these contentions have been resolved by the Nepean Business Park Urban Design Study and Master Plan dated 30 November 2021.

Water-sensitive urban design and stormwater management controls

54. The Minister also contended that the proposed development did not demonstrate acceptable water quality impacts from stormwater discharged into the Penrith Lakes System, as required by the SEPP 1989, or that there was compliance with the water-sensitive urban design and stormwater management controls under the PLDCP (Part 1 Contentions 11 and 11A).

55. As set out above at [30], Mr Dawes and Mr Babister, agree that the stormwater design complies with the requirements of the Stage 2 Penrith Lakes Water Management Plan, including the water-sensitive urban design and stormwater management controls under the PLDCP. Accordingly, the Minister agrees, and I accept, that this contention is resolved.

Traffic and pedestrian safety

56. The Minister raised a contention concerning pedestrian safety and the impact of the proposed development on the local traffic network (Part 2 Contention 1).

57. The entry into a voluntary planning agreement, and the certification of the Secretary dated 25 February 2022, means that the potential impacts on the surrounding state road network have been accommodated by the provision of a contribution for state and regional roads and do not need to be further considered.

58. The remaining issues concerning the local traffic network relate to the intersections of Castlereagh Road and Lugard Street, and Old Castlereagh Road and Road 3 of the proposed development. Both Great River and the Minister agree that this resolved by agreed conditions for certain road works to be carried out at those two intersections.

59. Similarly, the Minister agrees that the issue concerning pedestrian safety is resolved by agreed conditions requiring pedestrian and cycle path improvements along Lugard Street.

60. I accept that each of the issues concerning pedestrian safety and the impact of the proposed development on the traffic network have now been resolved.

Ecological issues

61. The Minister also raised a contention concerning the adequacy of the information concerning the impacts of the proposed development on biodiversity.

62. As set out above at [33], the ecologists agree that the vegetation management plans for the two areas – the environment zone along the Nepean River in Lots 200-203, and the vegetated area along Old Castlereagh Road – provide actions to enhance or restore the native vegetation in those areas and therefore to avoid impacts on biodiversity. The vegetation management plan for Lots 200-203 will be registered on those lots upon their creation, which are Torrens title lots. The other vegetation management plan, for the vegetation along Old Castlereagh Road, will be registered on the community title scheme. I accept that this will provide a structure for the long term management of the land zoned Environment. I am therefore satisfied that the impacts on biodiversity are satisfactorily addressed through the vegetation management plans that form part of the proposed development.

Remaining contentions

63. In addition, the following contentions have similarly been resolved:

• Part 1 Contention 12 concerning aboriginal heritage has been resolved by the preparation of an updated Aboriginal Cultural Heritage Assessment.

• Part 2 Contentions 8 and 12, concerning bulk earthworks and construction impacts, have been resolved by conditions of consent, one of which requires a Construction Traffic Management Plan.

• Part 2 Contentions 4 and 5 concerning arboriculture have been resolved by the evidence of the arborists referred to at [38]-[40] and the imposition of conditions of development consent C14-C16, E18 and F39.

• Part 2 Contention 13, concerning the inconsistency between the proposed development and an existing consent for a pipeline, has been resolved by an acknowledgment by the Minister that the inconsistency is not a ground for refusal of the proposed development. It will be a matter for the developer or Great River to decide which of the two development consents to carry out, or whether one warrants lodgement of a modification application so that they can both be carried out.

Development consent should be granted

64. For the above reasons, each of the contentions raised by the Minister in the Amended Statement of Facts and Contentions have now been addressed through the amendments to the proposed development, by agreement on conditions of consent and/or on the basis of expert evidence. In addition, the contentions that raised insufficient information, have each been resolved, largely by the provision of that information. The Minister agrees that there are no remaining contentions that warrant refusal of the development application.

65. The proposed development involves works within an area that is cleared and currently undergoing rehabilitation, with only a relatively small number of trees to be removed on a portion of the site. The two vegetation management plans will ensure that the two areas of biodiversity value will be enhanced and restored. The proposed development includes a FERP that will ensure that the evacuation of the area will take place in advance of the surrounding areas, and therefore will not adversely impact the evacuation of the local area. The parties have agreed on conditions of consent that will minimise a range of impacts that have been identified by the Minister. The proposed development is therefore suitable for the site and will not result in any unacceptable impacts.

66. In addition, I am satisfied that the following preconditions to the exercise of the Court’s jurisdiction, which have not been dealt with in the above reasons for judgment, have been met:

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. A site audit report dated 9 September 2021 refers to the previous audit of the site in February 2016 which confirms that the site is suitable for residential use, and confirms that the material imported to the site for the rehabilitation works meets the definition of either Virgin Excavated Natural Material or Excavated Natural Material.

• Consideration has been given to the matters set out in cl 22 of the SEPP 1989, based on the evidence in the proceedings, including the joint report of the geotechnical engineers and a number of Traffic Impact Assessments.

• Consideration has been given to the Aboriginal Cultural Heritage Assessment, prepared by EcoLogical Australia dated 20 December 2021, in satisfaction of cl 23(b) of the SEPP 1989. There is no plan of management for the Penrith Lakes Scheme that is required to be considered pursuant to cl 23(a).

• The PLDCP is in place and meets the requirements of cl 36 of the SEPP 1989.

67. The parties have not identified any other preconditions to the grant of development consent. Accordingly, development consent should be granted, subject to the agreed conditions of consent.

Final orders

68. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the development application lodged on the NSW Planning Portal on 4 March 2022 and filed with the Court on the same date.

2. The appeal is upheld.

3. Development consent is granted for the Torrens title subdivision of three lots at 14-98 Old Castlereagh Road, Castlereagh into four environmental lots and one residual lot, and the subdivision of the residual lot into 93 Community title lots and one community association lot, across 13 development stages with associated earthworks, road works and landscaping, subject to the conditions of consent in Annexure A.

4. Exhibits 1, 3-16 are returned and Exhibits A-K, 2, and 17 are retained.

……………………….

J Gray

Commissioner of the Court

(Annexure A) (613311, pdf)

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Decision last updated: 31 March 2022