HS Property Developments Pty Ltd v Penrith City Council

[2021] NSWLEC 1114

Land and Environment Court

New South Wales

Medium Neutral Citation:

HS Property Developments Pty Ltd v Penrith City Council [2021] NSWLEC 1114

Hearing dates:

Conciliation conference on 26 February 2021

Date of orders:

9 March 2021

Decision date:

09 March 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The Applicants are granted leave to rely on an amended application and rely on the plans listed in Condition 1 of the Conditions of Consent at Annexure A.

(2) The Applicants are to pay the Respondent’s costs thrown away in the sum of $3,000.00 within 14 days pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3)   The appeal is upheld.

(4)   Development Application No. DA18/0354 lodged with the Respondent on 10 April 2018 and as amended by the plans, drawings and material listed in Condition 1 of the Conditions of Consent for demolition works, construction of ten townhouses, and ancillary landscaping, fencing, stormwater and drainage works at 34 Mamre Road and 33 Collins Street, St Marys NSW 2760 is approved subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.16

Environmental Planning and Assessment Regulation 2000, Sch 1

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cll 7.4, 7.6, 7.7

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

HS Property Developments Pty Ltd (First Applicant)
Coprom Pty Ltd (Second Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicants)
A Avery (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicants)
Penrith City Council (Respondent)

File Number(s):

2020/45198

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of Development Application No. DA18/0354 for the consolation of two lots, demolition of existing structures and the construction of 10 x two-storey townhouses with ancillary landscaping, fencing and stormwater and drainage works on Lot 1 in DP 865175 and Lot 8 in DP 219187 located at 34 Mamre Road and 33 Collins Street, St Marys (the site).

2. The site is zoned R3 Medium Density under the Penrith Local Environmental Plan 2010 (LEP) and multi-dwelling housing is permissible with consent. The development is also permissible under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP) and this application is made under the SEPP.

3. On 21 February 2021, the appeal was referred to a Court facilitated conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference.

4. During that process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision, as agreed, requires the Court’s leave to rely on amended plans and the grant of development consent on a conditional basis.

5. I am satisfied that the parties agreed decision is one that the Court can make in the proper exercise of its functions under s 4.16(1) of the EPA Act for the following reasons:

1. Firstly, the proposed development, as amended, does not contravene any mandatory provision of the SEPP or development standard under the LEP or any other applicable environmental planning instrument.

2. As amended, the development now provides requisite solar access, parking and landscaping and the design of the development in my assessment is compatible with the character of the local area. I also consider the development to be consistent with the R3 zone objectives which include the desired future character and dwelling densities of the area.

3. The development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. Therefore, the nominated principles of sustainable development have been considered in the BASIX Certificate and Architectural Plans as required by cl 7.4 of the LEP.

4. As the site is located in an existing and established urban area, I accept that the development will not affect, or be affected by, saline soils: cl 7.6 of the LEP.

5. The need for public amenities and services has been met or will be met by development contributions levied as part of the conditions of consent: cl 7.7 of the LEP and I accept that the site being located within an established urban area will have an existing connection to all services including water, sewer and electricity.

6. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to dispose of the proceedings in accord with the terms of the agreement.

7. The Court orders that:

1. The Applicants are granted leave to rely on an amended application and rely on the plans listed in Condition 1 of the Conditions of Consent at Annexure A.

2. The Applicants are to pay the Respondent’s costs thrown away in the sum of $3,000.00 within 14 days pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development Application No. DA18/0354 lodged with the Respondent on 10 April 2018 and as amended by the plans, drawings and material listed in Condition 1 of the Conditions of Consent for demolition works, construction of ten townhouses, and ancillary landscaping, fencing, stormwater and drainage works at 34 Mamre Road and 33 Collins Street, St Marys NSW 2760 is approved subject to the conditions at Annexure A.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (254263, pdf)

Plans (7086459, pdf)

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Decision last updated: 11 March 2021