Keneco Property Pty Ltd v Blacktown City Council

[2023] NSWLEC 1326

Land and Environment Court

New South Wales

Medium Neutral Citation:

Keneco Property Pty Ltd v Blacktown City Council [2023] NSWLEC 1326

Hearing dates:

Conciliation conference 22 March, 2 June 2023

Date of orders:

28 June 2023

Decision date:

28 June 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the First Respondent that have been thrown away as a result of amendment of the development application as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA-21-01610 as amended, for demolition of existing structures, construction and use of a bulky goods premises with 43 car parking spaces, construction of one new vehicle crossover driveway on Townson Road, associated landscaping, business identification signage, rehabilitation works under the implementation of a five year Vegetation Management Plan on the part of the zoned C2 Environmental Conservation, and other minor works at 6 Townson Road, Colebee, subject to conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures, construction and use of a bulky goods premises, parking, access crossing, landscaping, signage – conciliation conference - amended plans – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 8

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 50

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

Land and Environment Court Act 1979, s 34

Roads Act 1993, ss 68, 138

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, 7, 8, 9, 10, 11, 12, ss 6.65, 9.3, 9.4, 9.5

State Environmental Planning Policy (Precincts—Central River City) 2021, Pt 3.5, s 3.26, Appendix 13, ss 5.1, 6.4

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.11

Threatened Species Conservation Act 1995
Water Management Act 2000, s 91

Texts Cited:

Blacktown City Council Growth Centre Precincts Development Control Plan 2010

NSW Rural Fire Service, Planning Bush Fire Protection, 2019

Category:

Principal judgment

Parties:

Keneco Property Pty Ltd (Applicant)
Blacktown City Council (First Respondent)
Transport for New South Wales (Second Respondent)

Representation:

Counsel:
G Farland (Applicant)
S Berveling (First Respondent)
A Hemmings (Second Respondent)

Solicitors:
Allens (Applicant)
Bartier Perry (First Respondent)
Holding Redlich (Second Respondent)

File Number(s):

2022/174498

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by Keneco Property Pty Ltd (the Applicant) against the refusal of development application DA-21-01610 (the DA). The application, as amended, seeks consent for the demolition of existing structures, construction and use of bulky goods premises with 43 car parking spaces, construction of one new vehicle crossover driveway on Townson Road, associated landscaping and business identification signage, rehabilitation works under the implementation of a five year Vegetation Management Plan on the part of the land zoned C2 Environmental Conservation and other minor works at 6 Townson Road, Colebee (Lot 44 DP 1175138).

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 22 March 2023. I presided over the conciliation conference. Following the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

3. 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 on the basis that:

1. The DA was lodged before 1 March 2022. Accordingly, pursuant Sch 6, s 3(1) of Environmental Planning and Assessment Regulation 2021 the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continues to apply.

2. As required by cl 49(1) of the EPA Regulation the consent of the owner of the land accompanies the DA.

3. The initial DA was advertised and notified in accordance with Blacktown City Council Growth Centre Precincts Development Control Plan 2010 from 30 June to 29 July 2022. Two objections were received. These public submissions have been taken into account in the determination of the DA. The DA was renotified between 15 to 29 May 2023, no further submissions were received.

4. Pursuant to s 91 of the Water Management Act 2000, the DA was referred to the NSW Department of Planning and Environment – Water as a Controlled Activity Permit is required for certain activities if they are carried out within 40m of a river lake or estuary, in this case Bells Creek. Following the amendments to the DA no works are now proposed within 40m of Bells Creek and a Controlled Activity Permit is no longer required.

5. Pursuant to s 138(2) of the Roads Act 1993 (Roads Act) the DA was referred to Transport for NSW for any works that are proposed in, on or over Richmond Road (a Classified Road). Following the amendments to the DA, access is no longer sought from Richmond Road. The conditions include a requirement for the Applicant to obtain an approval under s 138 of the Roads Act for works on Townson Road to construct the new vehicle crossover driveway.

6. The site is bushfire prone land. As required by s 4.14 of the EPA Act I am satisfied, based on the Bushfire Protection Assessment that forms part of the amended DA, the development conforms to the requirements of Planning for Bushfire Protection 2019.

7. The Site (with the exception of the C2 zoned area) is biodiversity certified under s 126H of the (now repealed) Threatened Species Conservation Act 1995 (TSC Act). The biodiversity certification under the TSC Act remains in force under the Biodiversity Conservation Act 2016 (BC Act) and is taken to be biodiversity certification conferred on the land under Pt 8 of the BC Act. Biodiversity certification enlivens dispensation from the requirements to assess, and for the consent authority to take into consideration, the likely impact of biodiversity of the proposed development to be carried out on that land. A Flora and Fauna Assessment Report which was lodged with the DA recommended the preparation and implementation of a Vegetation Management Plan (VMP) for certain land within the study area. A VMP was also lodged with the DA. A condition of consent has been proposed in relation to implementation of the VMP.

8. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider the contamination and remediation of land when determining a development application. The Site has historically been used for commercial activities. A Detailed Site Investigation (DSI) and Addendum to the DSI accompanied the DA and concluded that the Site is suitable for the Proposed Development. On the basis of the reports supporting the DA and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

9. The DA satisfies s 2.11(2) of State Environmental Planning Policy (Transport & Infrastructure) 2021 as:

1. Vehicular access to the Proposed Development will be via Townson Road which is not a classified road.

2. The safety, efficiency and ongoing operation of Richmond Road will not be adversely affected by the Proposed Development; and

3. The Proposed Development is of a type that is not sensitive to traffic noise or vehicle emissions and is appropriately located and designed.

10. The site is zoned part B5 Business Development, part C2 Environmental Conservation pursuant to Appendix 13 of the State Environmental Planning Policy (Precincts–Central River City) 2021 (Precincts SEPP). The building footprint of the proposed bulky goods facility is confined to the B5 Business Development zone which is a nominate permissible use. The uses proposed in the DA are permitted with consent in the respective B5, C2 and SP2 zones.  In determining the development application, I have considered the objectives of the respective zones.

11. Pursuant to s 5.1– Relevant acquisition authority in Appendix 13 of the Precincts SEPP, part of Townson Road is reserved for the purposes of road widening. The proposal, including all buildings, carparking and landscaping, is outside of the land reserved to be acquired.

12. Pursuant to s 6.4 – Development Controls – existing native vegetation, native vegetation occurs on the portion of the site zoned C2 Environmental Conservation. The VMP does not seek clearing of any native vegetation and the DA is consistent with s 6.4 of Appendix 13 in the Precincts SEPP.

13. Pursuant to Pt 3.5, s 3.26 of Appendix 13 in the Precincts SEPP I am satisfied that the DA has taken flood consideration into account. The proposed bulky goods premises is to be constructed at the proposed minimum level of finished floor level that meets the Council’s flood control requirements. Further, a flood management plan was lodged with the DA.

14. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the Site. On 21 November 2022, the State Environmental Planning Policy Amendment (Water Catchments) 2022 (SEPP Water Catchments) commenced and repealed the previous Chs 6 to 12 of the Biodiversity SEPP and inserted a new Ch 6 (Water Catchments). However, s 6.65 saved the application of the former provisions to the DA as a development application lodged but not finally determined before the commencement of the SEPP Water Catchments.

15. The (now repealed) s 9.3 of the Biodiversity SEPP requires a consent authority to take into account the general planning considerations at s 9.4 and the specific planning policies and related recommended strategies in s 9.5 which are applicable to the proposed development.

1. In respect of the general planning considerations under s 9.4, the DA is consistent with the aim of Ch 9 as it will not adversely impact the water quality of the Hawkesbury-Nepean River catchment.

2. In respect of the specific planning policies and recommended strategies under (the now repealed) s 9.5:

1. the DA will not have a significant adverse environmental effect;

2. the DA includes a VMP that will facilitate rehabilitation of the C2 zoned area in which Bells Creek is located;

3. as detailed in Section 6 of the Amended Stormwater Management Plan, the DA will not adversely impact the water quality of the catchment;

4. the DA will not adversely alter the characteristics of surface or groundwater in the catchment.

4. 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 accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

6. The Court notes that the First Respondent has agreed under cl 55 of the EPA Regulation to the Applicant amending Development Application No. DA-21-01610 to rely upon the amended plans and documents described at rows 1 to 8 of Condition 2.1.1 in Annexure A.

7. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the First Respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-21-01610, as amended, for demolition of existing structures, construction and use of a bulky goods premises with 43 car parking spaces, construction of one new vehicle crossover driveway on Townson Road, associated landscaping and business identification signage, rehabilitation works under the implementation of a five year Vegetation Management Plan on the part of the land zoned C2 Environmental Conservation and other minor works at 6 Townson Road, Colebee, subject to the conditions set out in 'Annexure 'A'.

D Dickson

Commissioner of the Court

Annexure A (364461, pdf)

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Decision last updated: 28 June 2023