Maryland Development Company Pty Ltd v Penrith City Council

[2024] NSWLEC 1417

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maryland Development Company Pty Ltd v Penrith City Council [2024] NSWLEC 1417

Hearing dates:

Conciliation conference on 21 June 2024

Date of orders:

23 July 2024

Decision date:

23 July 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is allowed to file the amended application, and the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development Application No 23/0551 is determined by grant of consent for bulk earthworks (including the excavation and reinstatement of fill) at Lot 6 in DP 1248480 (Wianamatta Parkway, Jordan Springs NSW 2474) subject to the conditions contained at Annexure B.

Catchwords:

APPEAL – bulk earthworks – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.10, 8.15, Pt 4, Div 4.8

Land and Environment Court Act 1979, s 34

Protection of the Environment Operations Act 1997, Sch 1, s 16

Environmental Planning and Assessment Regulation 2021, s 37, Sch 3, ss 21, 48

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.13

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Ch 6, Pt 6.3, ss 6.2, 6.5, 6.7, 6.20

State Environmental Planning Policy (Resilience and Hazard) 2021 (Resilience SEPP), Ch 4, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited:

Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another [2005] NSWLEC 23

Maule v Liporoni& Anor (2002) 122 LGERA 140; [2002] NSWLEC 25

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited:

St Marys Central Precinct Plan, as amended 7 September 2018

Category:

Principal judgment

Parties:

Maryland Development Company Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
L Cone (Solicitor) (Applicant)
J Wauchope (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Dentons (Respondent)

File Number(s):

2024/18088

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal was lodged by Maryland Development Company Pty Ltd (applicant) under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns the deemed refusal by Penrith City Council (Council) of development application number DA23/0551 (DA). The DA seeks consent for bulk earthworks at Lot 6 in DP 1248480, and generally located in the environs of Wianamatta Parkway, Jordan Springs (site).

Context

2. Jordan Springs is located within the larger St Marys ADI site urban release area, with related urban development occurring since 2004 and continuing significant further development to occur over time in stages.

Conciliation and agreement between the parties

3. After significant prior dialogue between the parties, and at the parties’ request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 21 June 2024, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended to address various contentions, and subject to conditions.

4. 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. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed jurisdictional statement received by the Court on 3 July 2024.

Jurisdiction

Statutory considerations relating to the proposed earthworks

5. The proposal includes excavation of fill from the site, processing the fill excavated from the site, stockpiling fill, using that fill material to fill the site, importing and emplacing additional fill, and offsite disposal of unsuitable excavated materials. The processed and imported fill will be compacted on site to result in final land levels.

6. Over the period of the development of the former ADI site, significant bulk earthworks have already been approved and undertaken, including in relation to providing for flood free development areas in the site environs. It has come to the knowledge of the parties that, to serve its intended purpose, large areas of the previously filled land need to be subject to further works. Essentially it has been determined that some of the constituent parts of the existing fill are oversized and do not perform satisfactorily, in terms of settlement, and as a foundation for further works. Without any great precision here, I understand that with the earthworks component of the DA, existing fill, including what have been described as “boulders” within the larger fill areas, would be subject to what has been characterised by the parties as crushing, grinding and separating works.

7. The procedural aspects of the approval of such works has been examined by the parties. Firstly, the parties submit and I accept that these proposed works are not designated development under s 4.10 of the EPA Act. Schedule 3 of the EPA Regulation prescribes designated development. Development for “crushing, grinding or separating” works is listed at s 21, with certain threshold parameters identified for inclusion within the relevant designated development declaration.

8. However, the parties submit and I accept that the exception provisions at s 48 of Sch 3 apply. That is that s 48 of Sch 3 would exclude the proposed crushing, grinding and separating works as it essentially involves alterations or additions to existing and approved earthworks. Section 48(1) of Sch 3 allows this exclusion provided that, in the consent authority’s opinion, these alterations or additions do not significantly increase the environmental impacts of the existing or approved development. Section 48(2) lists certain matters a consent authority must consider in forming this opinion. The parties’ advise they are satisfied with the test at s 48(1) of Sch 3. They rely on an Addendum Statement of Environmental Effects (Addendum SEE) prepared by GLN Planning and dated 16 May 2024 (Tab 1 Amended Development Application material). I have reviewed the advice provided, relevantly, at section 3.1.1 of the Addendum SEE. This material works through the relevant factors at s 48(2) of Sch 3 and finds positively in regard to the test at s 48(1). On all of the material before me, I agree with the parties that, mindful of the considerations at s 48(2), the proposed alterations or additions do not, in this instance, significantly increase the environmental impacts of the existing or approved development. This means the proposal should not be characterised as designated development.

9. Attention can also be given to integrated development provisions under Div 4.8 of Pt 4 of the EPA Act, in particular the association with the requirements for an environment protection license under the Protection of the Environment Operations Act 1997 (POEO Act) for the proposed crushing, grinding and separating works. Two factors are important to note on this front. First is that the applicant has elected not to lodge the DA as integrated development. The applicant indicated during the conciliation that after undertaking certain mathematical modelling it did not believe that the volumetric trigger for integrated development would occur (POEO Act Sch 1 – Scheduled activities and, relevantly, s 16). Second is that, while Council believes it is likely that the development will exceed the volumetric requirement for an EPA license, should this eventuate, the license would still need to be obtained from the EPA as a matter of law. A condition of consent has been included (Condition 19) which highlights this requirement and provides for further liaison with the EPA to progress this question, prior to the commencement of works.

10. I am satisfied that this development does not constitute designated development and that mindful of Maule v Liporoni & Anor [2002] NSWLEC 25; (2002) 122 LGERA 140 at 172 and 174, there is no jurisdictional error in not requiring the integrated development process to be followed in this instance. Also mindful of Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another [2005] NSWLEC 23 at [70], and on the advice of the parties, I see no consequences adverse to the EPA Act with the intended course, due to the conditions of consent and associated safeguards, whether or not an EPA license is required.

Western Parkland City SEPP

11. Chapter 6 of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Western Parkland SEPP) applies to the site and is the primary applicable environmental planning instrument. Pursuant to Pt 6.3 and s 6.20(2)(a) a precinct plan has been prepared and this is known as the St Marys Central Precinct Plan (CPP) adopted in March 2016 and most recently amended on 7 September 2018. The CPP includes a Development Control Strategy (DCS).

12. The site is zoned part Regional Open Space, Regional Park and Urban under Ch 6 of the Western Parkland SEPP. The proposed development is largely proposed to be carried out on land zoned Urban, with minor battering works over land zoned Regional Open Space.

13. The parties advise that the proposed earthworks are permissible with consent as they are preparatory works associated with facilitating further development in accordance with the applicable zoning and controls that otherwise apply and that further the proposed earthworks are instrumental to delivering a development outcome in line with the Western Parklands SEPP.

14. The parties advise and I accept that the proposal is consistent with the aims for the St Marys precinct (as specified in s 6.2 of the Western Parkland SEPP) because it progresses development of the precinct for urban development for which the site was rezoned (jurisdictional statement par 17).

Section 6.20 – Development consent restrictions

15. Section 6.20(1)(a) states that development consent must not be granted unless the consent authority is satisfied that the proposal is not inconsistent with the performance objectives and zone objectives in Ch 6 of the Western Parklands SEPP.

16. The parties have also taken me to the relevant zone objectives and indicated their opinion that the proposal is consistent with them. I have reviewed the objectives of the urban zone. Given that the proposal is preparatory in nature there is clearly no inconsistency with the first five of these zone objectives. I also accept the advice of the parties that the proposal is not inconsistent with sixth zone objectives because of environmental requirements. The two objectives of the regional open space zone are procedural in nature and the proposal is clearly not inconsistent with them. The proposal is not inconsistent with the regional park zone as it does not involve development of land in this zone.

17. I have considered and accept the advice of the parties that the proposal is not inconsistent with the performance objectives as set out in Pt 6.5 of the Western Parkland SEPP. Here, I refer in particular to par 20 of the jurisdictional statement which works through ss 6.22-6.35 of Western Parkland SEPP:

“6.22 Ecologically Sustainable Development – the Proposed Development supports the goal of ecologically sustainable development as it represents the realisation of the St Marys Development Area, which is consistent with the Greater Sydney Regional Plan - A Metropolis of Three Cities, because it locates people close to jobs, education and transportation. The Proposed Development is located over land that has already been cleared and filled ensuring that the proposal does not erode the foundations of ecologically sustainable development.

6.23 Air Quality - The air quality of the existing residents has been considered during the construction works of the proposed earthworks.

6.24 Conservation - All trees and vegetation have previously been removed from the Site under previous approvals. No additional trees are proposed to be removed under the Proposed Development.

6.25 Heritage - The Proposed Development does not impact any known items of heritage significance.

6.26 Community Services – There are no community facilities proposed as part of this Proposed Development.

6.27 Open Space and Recreation - The Proposed Development does not compromise the delivery of Regional Open Space identified within the Precinct.

6.28 Water Cycle - As detailed in the Civil Engineering Plans, appropriate erosion and sediment control measures will be implemented to reduce the risk of harm to the Hawkesbury Nepean catchment.

6.29 Soils - The Proposed Development is supported by detailed Geotechnical and Contamination assessments, which include methodologies to be adopted during the construction of the Proposed Development that mitigate unreasonable risk.

6.30 Transport – Access to the Site will be provided via the existing road networks, the Northern Road and Wianamatta Parkway.

6.31 Urban Form - The Proposed Development will enable future development over Stage 6 in accordance with the CPP.

6.32 Employment and Business Development - The Site is not located within an employment or business zone and will not restrict or impact the provision of such development on appropriately identified land in the future.

6.33 Housing - The Proposed Development is required to establish suitable levels for future development. Any future development applications for housing will contribute to the range of housing that will be provided throughout the Precinct.

6.34 Energy Efficiency - Future housing development applications will be required to comply with the Building Sustainability Index requirements for all dwellings.

6.35 Waste Management – A waste management plan is prepared and provided as part of the DA”.

18. Section 6.20(1)(b) of the Western Parkland SEPP requires the consent authority to have considered the development control strategies contained in the environmental planning strategy, as relevant. Part 5 of the DCS describes the planning, design and environmental objectives and controls to ensure orderly, efficient and sensitive development. I accept the advice of the parties that the proposal is consistent with these strategies.

19. Section 6.20(2)(a) states that consent must not be granted for development within the precinct unless there is a precinct plan, and the consent authority has taken that precinct plan into account. In the jurisdictional statement the parties provide a detailed explanation of the particulars of the Central Precinct Plan and how it has been taken into account (jurisdictional statement pars 51-78).

20. Section 6.20(2)(b) of Ch 6 of the Western Parkland SEPP requires the consent authority to take into account whether the proposal is consistent with any relevant development agreement. The parties advise of two applicable development agreements being the St Marys State Development Agreement dated 7 May 2013 and the Penrith Planning Agreement dated 20 December 2018. The parties advise the proposal is consistent with: (1) the Penrith Planning Agreement in that it will facilitate the development of the Central Pocket Park and the Offroad Shared Path along Wianamatta Parkway, and (2) the St Marys State Development Agreement which requires the delivery of a range of state infrastructure to support the surrounding area.

Part 6.7 Development controls

21. There are a series of development control provisions listed under Pt 6.7. The parties have addressed each in turn in the jurisdictional statement. I have considered these responses and accept them as reasonable in the circumstances (jurisdictional statement pars 27-37):

“Section 6.44 – Consultation with National Parks and Wildlife Services

The Proposed Development is on land adjoining land within the Regional Park Zone. Consistent with section 6.44(2) a copy of the development application has been referred to National Parks and Wildlife.

Section 6.50 – Land below the PMF level

The Proposed Development is not for residential or industrial purposes, so section 6.50(2) does not apply. In relation to section 6.50(4), the Proposed Development is for alterations and additions to DA14/1228 and does not propose any changes to the levels which were approved and considered to comply with the Flood Risk Management Manual at that time. As such, the parties consider that section 6.50(4) is satisfied.

Section 6.51 – Filling of land

Filling of land that is below the level of the PMF before it is filled is prohibited. The fill level for the Proposed Development was approved under DA14/1228 which accounted for the flood planning level. The current DA seeks to excavate the material from DA14/1228 and reinstate the material to the defined flood event level.

Section 6.52 – Salinity and highly erodible soils

The fill material on the Site has been assessed as within the Non-Saline to Moderately Saline range, see Tab 24 of the Amended Development Application. The Proposed Development includes the excavation and reinstatement of this material. The matters in section 6.52 have been addressed.

Section 6.53 – Tree preservation

The Proposed Development does not propose any tree removal.

6.55 General heritage considerations

The Proposed Development is not in the vicinity any items of environmental heritage.

Section 6.57 – Conservation of Aboriginal sites and items and relics of Aboriginal cultural significance

AHIP No. C0000362 was previously issued over the Site. The AHIP permitted works including testing and salvage excavation for Aboriginal objects and places. GML Heritage has provided an assessment of AHIP responsibilities, see Tab 22 of the Amended Development Application. The Proposed Development is within the scope of this AHIP, satisfying the requirements in section 6.57.

Section 6.58 – Access

Access to the Site will be provided via the existing road network from The Northern Road and Wianamatta Parkway.

Section 6.61 – Services

Section 6.61 states that development must not be carried out until arrangements have been made for the supply of water, sewerage, drainage and underground power that are satisfactory to the consent authority. Sufficient services will be available to the Site for the supply of water, sewerage, drainage and underground power when needed, satisfying this section.

The earthworks proposed under the Proposed Development do not generate demand for any increased access to public utility infrastructure.

Section 6.67 – Public Utility Infrastructure

Section 6.67 states that development consent must not be granted unless the consent authority is satisfied that public utility infrastructure that is essential for the development is available or will be available when required. The Proposed Development does not generate demand for public utility infrastructure, which will be delivered concurrently with future development applications for development in the precinct.”

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. Section 2.48 relates to development applications which are likely to affect any electricity transmission or distribution network. An existing transmission line easement traverses through the Central Precinct. The DA was referred to TransGrid. Undated correspondence was received from TransGrid raising no concerns with the proposal subject to compliance with conditions attached to their correspondence. Those requirements have been adopted in the conditions of consent. The Proposed Development includes stockpiling of material in Stage 6 of the Precinct, which requires trucks to traverse the easement.

22. The parties advise that on 11 September 2023 TransGrid provided conditions of consent that it requested be imposed if the consent was granted, which have been adopted.

23. The parties advise that on 23 August 2023, Transport for New South Wales provided advice in accordance with consideration and referral requirements pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2021. The correspondence raised no concerns and requested no further information.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

25. The site is identified within the Hawkesbury Nepean Catchment (specifically within the South Creek Sub-catchment) and is therefore subject to s 6.13 of Pt 6.2 of Ch 6. The parties agree that the proposal would have a negligible impact on the Hawkesbury Nepean River System as the civil works include erosion and sediment control measures that will mitigate water quality impacts during construction works. The parties agree that the proposal is an improvement on the approved measures over the site under DA17/0889 and satisfies the requirements of s 6.13.

26. The parties also confirm that they have considered the relevant matters required to be considered in ss 6.6 to 6.10 and requirements have been satisfactorily addressed. In relation to s 6.6(2), the parties agree that the proposal will ensure that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody will be minimised, given that the stormwater quality strategy proposed in Stage 3 is in line with the overarching Jordan Springs East Precinct Stormwater Quality Management Plan, prepared by Cardno on November 2020. It is expected that the site runoff entering the water way will therefore have a neutral or beneficial impact on water quality when compared to the approved strategy. Based on this advice I am satisfied in relation to the matters at s 6.6(2).

27. In relation to s 6.7(2), the parties also consider that the relevant matters set out in ss 6.7(2)(a) to (e) are satisfactorily addressed. Based on this advice of the parties I am also satisfied in relation to the matters at s 6.7(2). In relation to s 6.8(2) the parties also consider that the relevant matters set out in s 6.8(2) are satisfactorily addressed. Based on this advice I am satisfied in relation to the matters at s 6.8(2). More generally I have considered the matters raised in s 6.9 relating to recreation and public access and given the planned context of the proposal I am satisfied in regard to the matters at s 6.9(2).

State Environmental Planning Policy (Resilience and Hazard) 2021 (Resilience SEPP)

28. Chapter 4 of the Resilience SEPP relates to remediation of land, with s 4.6 requiring a consent authority to consider whether the land is contaminated, and if the land is contaminated ensure that they are satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted.

29. The Central Precinct has been subject to extensive investigation and, where necessary, remediation through the 1990s. Due consideration has been given to whether the land is contaminated, with a detailed site methodology prepared to ensure that all material excavated and reinstated on the site is reviewed and tracked, ensuring it remains suitable for urban development. The requirements of Ch 4 have been satisfied.

Other considerations

30. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions, also noting no objecting public submissions were received.

Conclusion

31. Based on the above reasoning, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

32. 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 proposal generally.

Notation

33. The Court notes that Penrith City Council, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulations 2021 the amendment to Development Application No 23/0375 to include the plans and documents indicated at Annexure A.

Orders

34. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is allowed to file the amended application, and the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed.

2. The appeal is upheld.

3. Development Application No 23/0551 is determined by grant of consent for bulk earthworks (including the excavation and reinstatement of fill) at Lot 6 in DP 1248480 (Wianamatta Parkway, Jordan Springs NSW 2474,) subject to the conditions contained at Annexure B.

P Walsh

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 23 July 2024