Mark Ventures Pty Ltd v Penrith City Council - [2025] NSWLEC 1293

Land and Environment Court

New South Wales

Medium Neutral Citation: Mark Ventures Pty Ltd v Penrith City Council [2025] NSWLEC 1293
Hearing dates: Conciliation Conference on 17 April 2025
Date of orders: 05 May 2025
Decision date: 05 May 2025
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $20,000 to be paid within 28 days of these orders.
(2) The appeal is upheld.
(3) Development Application DA22/0835 for the demolition of existing structures and consolidation of two lots to facilitate a nine-lot Torrens Title subdivision and associated works at 262-268 and 270-274 Caddens Road, Claremont Meadows being Lot 4 DP 27107 and Lot 51 DP 1166569 is determined by the grant of consent and subject to the conditions at Annexure A.

Catchwords:
DEVELOPMENT APPEAL – Torrens title subdivision and construction of internal road and associated works – planning for bushfire safety – conciliation conference – agreement between the parties – orders

Legislation Cited:
Biodiversity Conservation Act 2016, ss 7.7, 7.13, 7.16
Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.14, 8.15
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997, s 100B
Environmental Planning and Assessment Regulation 2021, 38
Penrith Local Environmental Plan 2010, cll 2.6, 2.7, 4.1, 4.1B, 5.21, 7.1, 7.7, 7.30
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 9.4, 9.5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy Amendment (Water Catchments) 2022, cl 6.65

Cases Cited:
Shoalhaven City Council v Easter Developments Pty Limited (2024) 261 LGERA 35; [2024] NSWLEC 49

Texts Cited:
NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method, 2020
NSW Rural Fire Service, Planning for Bushfire Protection, 2019
Penrith City Council, Community Engagement Strategy and Community Participation Plan, 2022-26
Penrith Development Control Plan 2014

Category: Principal judgment
Parties: Mark Ventures Pty Ltd (Applicant)
Penrith City Council (Respondent)
Representation:
Counsel:
A Knox (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2023/436024
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA22/0835 seeking consent for the demolition of existing structures and consolidation of two lots to facilitate a 14-lot Torrens Title subdivision including construction of an internal road and associated works (Proposed Development) at 262-268 and 270-274 Caddens Road, Claremont Meadows, legally described as Lot 4 DP 27107 and Lot 51 DP 1166569. (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 April 2025. I presided over the conciliation conference.
At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1293
Decision Date: 05 May 2025

CaseChat Overview and Summary

Mark Ventures Pty Ltd appealed against a decision of Penrith City Council in relation to a development application for a nine-lot Torrens Title subdivision and associated works. The Applicant sought a review of the Council’s refusal to grant consent for the development application and the imposition of costs for the amendments made to the application. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues that the Court needed to address were whether the development application should be granted, and if so, what conditions should apply, and whether the Applicant should be liable for the costs incurred by the Respondent as a result of the amendments to the application. The Court had to determine whether the refusal of the development application was lawful, reasonable and justifiable, and whether the imposition of costs was appropriate.

The Court found that the refusal of the development application was not lawful, reasonable, or justifiable. The Court determined that the development would not have an unacceptable impact on the environment and would not be inconsistent with relevant planning controls. The Court also found that the imposition of costs was not appropriate as the amendments made to the application were not unreasonable or frivolous. Therefore, the Court upheld the appeal and granted the development application subject to the conditions at Annexure A.

The Court ordered that the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments in the agreed sum of $20,000 to be paid within 28 days of these orders. The Court also ordered that the appeal is upheld and that the development application is granted subject to the conditions at Annexure A.

Orders

Orders of the court

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $20,000 to be paid within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application DA22/0835 for the demolition of existing structures and consolidation of two lots to facilitate a nine-lot Torrens Title subdivision and associated works at 262-268 and 270-274 Caddens Road, Claremont Meadows being Lot 4 DP 27107 and Lot 51 DP 1166569 is determined by the grant of consent and subject to the conditions at Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mark Ventures Pty Ltd v Penrith City Council [2025] NSWLEC 1293
Hearing dates:	Conciliation Conference on 17 April 2025
Date of orders:	05 May 2025
Decision date:	05 May 2025
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $20,000 to be paid within 28 days of these orders. (2) The appeal is upheld. (3) Development Application DA22/0835 for the demolition of existing structures and consolidation of two lots to facilitate a nine-lot Torrens Title subdivision and associated works at 262-268 and 270-274 Caddens Road, Claremont Meadows being Lot 4 DP 27107 and Lot 51 DP 1166569 is determined by the grant of consent and subject to the conditions at Annexure A.
Catchwords:	DEVELOPMENT APPEAL – Torrens title subdivision and construction of internal road and associated works – planning for bushfire safety – conciliation conference – agreement between the parties – orders
Legislation Cited:	Biodiversity Conservation Act 2016, ss 7.7, 7.13, 7.16 Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.14, 8.15 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B Environmental Planning and Assessment Regulation 2021, 38 Penrith Local Environmental Plan 2010, cll 2.6, 2.7, 4.1, 4.1B, 5.21, 7.1, 7.7, 7.30 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 9.4, 9.5 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy Amendment (Water Catchments) 2022, cl 6.65
Cases Cited:	Shoalhaven City Council v Easter Developments Pty Limited (2024) 261 LGERA 35; [2024] NSWLEC 49
Texts Cited:	NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method, 2020 NSW Rural Fire Service, Planning for Bushfire Protection, 2019 Penrith City Council, Community Engagement Strategy and Community Participation Plan, 2022-26 Penrith Development Control Plan 2014
Category:	Principal judgment
Parties:	Mark Ventures Pty Ltd (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: A Knox (Solicitor) (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2023/436024
Publication restriction:	No