Maryland Development Company Pty Ltd v Penrith City Council

[2024] NSWLEC 1418

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maryland Development Company Pty Ltd v Penrith City Council [2024] NSWLEC 1418

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 23/0375 is determined by grant of consent for staged urban development including earthworks, road and intersection delivery, subdivision to create 31 Torrens title residential lots and three residue lots, associated civil works, landscaping and “green links" at Lots 1, 2, 3 and 6 in Deposited Plan 1248480 (Wianamatta Parkway, Jordan Springs NSW 2474), subject to the conditions of consent in Annexure B.

Catchwords:

APPEAL – land subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, s 37, Sch 3, Pt 2, s 21, Pt 3, s 49

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, Pts 6.3, 6.5, 6.7, ss 6.2, 6.20

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

Cases Cited:

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

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):

2024/18101

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 DA23/0375 (DA). The DA seeks consent for staged urban development including earthworks, interim and ultimate road and intersection delivery, subdivision to create 31 Torrens title residential lots and three residue lots, associated civil works, landscaping and “green links” at Lots 1, 2, 3 and 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, 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) 111 NSWLR 634; [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 and updated advice received on 15 July 2024.

Jurisdiction

Rural Fires Act 1997 (RF Act)

5. A Bushfire Safety Authority is required to be obtained from the NSW Rural Fires Service (RFS) pursuant to s 100B of the RF Act as the DA includes the “subdivision of bushfire prone land that could lawfully be used for residential or rural residential purposes”. General terms of approval have been provided by RFS, and incorporated into agreed consent conditions.

Western Parkland City SEPP

6. 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).

7. Lots 1-3 in DP 1248480 are zoned Urban and Lot 6 is zoned part Regional Open Space, Regional Park and Urban under Ch 6 of the Western Parkland SEPP. I accept the advice of the parties that the proposal is properly characterised as residential development (involving subdivision, road construction and associated civil works) and is permissible with consent (no works are proposed within the Regional Park zone). I have reviewed the relevant zone objectives and accept the advice of the parties that the proposal is consistent or, as relevant, not inconsistent with them. The proposal is consistent with the Urban zone as the proposal would “facilitate future residential development in a medium density configuration, that is responsive to the existing and future development of the Precinct” (jurisdictional statement par 16). As indicated above, no works are proposed within the Regional Park zone.

8. The parties advise and I accept that the proposal is consistent with the aims of the St Marys Precinct (as specified in s 6.2 of the Western Parkland SEPP) because it (jurisdictional statement par 19):

“Progresses development of the Precinct for urban development for which the site was rezoned;

Increases the variety of lot sizes, encouraging housing diversity in the wider Precinct; and

Integrates with the road network and layout approved by previous development in the Precinct, including public reserves to increase pedestrian permeability to the future village centre and regional open space”.

Section 6.20 – Development consent restrictions

9. 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.

10. I have already found that the proposal is not inconsistent with the zone objectives.

11. 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 22 of the jurisdictional statement which works through ss 6.22-6.35 of Western Parkland SEPP in turn:

“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, filled, and previously approved for residential development, ensuring that the proposal does not erode the foundations of ecologically sustainable development.

The Proposed Development in particular will deliver a key transport link from Jordan Springs to Ropes Crossing that will assist in alleviating traffic impacts on the Northern Road

6.23 Air Quality – The Proposed Development contributes to improved regional air quality by restraining growth in required vehicle kilometres travelled by encouraging walking and public transport use.

6.24 Conservation - All trees and vegetation have previously been removed from the site under previous approvals. The Proposed Development does not remove additional trees.

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 under the Proposed Development, however it does improve residents access to services by delivering the transport link between Jordan Springs and the East West Connector Road.

6.27 Open Space and Recreation – The Proposed Development includes the delivery of pocket parks (green links) and establishes lots that for future embellishment as open space.

6.28 Water Cycle – Appropriate erosion and sediment control measures are proposed to reduce the risk of harm to the catchment.

6.29 Soils – The Proposed Development is supported by detailed geotechnical and contamination assessments, which include methodologies to be adopted during the construction to ensure any unreasonable risk is minimised.

6.30 Transport – The Proposed Development is critical to the delivery of an essential piece of transport infrastructure, being the link to the East West Connector Road.

6.31 Urban Form – The proposed subdivision in the Proposed Development is consistent with the CPP and provides a range of lot sizes to accommodate a variety of dwelling types for future residents.

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 contributes to the range of housing that will be provided throughout the Precinct.

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

6.35 Waste Management – A waste management plan is included in the development application.”

12. 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.

13. 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 58-85).

14. 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

15. 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 29-46):

“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 6.46 – Subdivision for residential purposes

It is forecast that across all stages the Central Precinct will accommodate 1,755 residential lots, plus 150 apartments. This equates to 1,905 dwellings. The current Proposed Development contributes 31 Torrens title residential lots to the currently approved/constructed 1,100 lots in the Precinct. The Proposed Development will therefore not result in the Precinct exceeding 2,000 dwellings.

A range of dwelling types are provided for within the Precinct and the total number of dwellings will not exceed 2,000 dwellings in satisfaction of this section.

Section 6.50 – Land below the PMF level

Development may be conducted on land below the PMF level only with the consent of the consent authority. The works under DA14/1228 (which included consent for works over the site) established the flood levels across the Precinct. The Jordan Springs East Flood Assessment Report, Final, Jacobs February 2015 established that the 1% AEP water surface profile gradually rises from 19.4m AHD at the northern extent of the Precinct to 21m at the southern end of the Precinct. The works under DA14/1228 granted consent for the elevation of existing natural surface levels within the Precinct so that each future lot is above the 1% AEP water surface profile. These works have been completed and therefore the surface levels through Stage 3 are above the 1% AEP water surface level. The proposed roads and lots are all above the 1% AEP flood level established by DA14/1228. In accordance with the Flood Evacuation Report prepared by Molino Stewart dated 22 May 2020, Stage 3 is able to be evacuated via Wianamatta Parkway, Armoury Road through to Werrington South in a PMF event.

As such, the requirements of section 6.50 are 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 28 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. The Proposed Development includes the connection of the development to the East West Connector Road.

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. Condition 54 requires that prior to the release of the subdivision certificate the Applicant must obtain a Section 73 Compliance Certificate under the Sydney Water Act 1994, a letter from the relevant energy provider stating that satisfactory arrangements have been made for electricity supply to all proposed allotments in the subdivision, including any necessary easements, and a letter from an approved telecommunications service provider that satisfactory arrangements have been made for underground telephone services to all proposed allotments in the subdivision, including any necessary easements. The condition also requires that all services (water, sewer, electricity, telephone and gas) [including the provision of service conduits and stub mains] are to be installed within the proposed public roads before final inspection of the engineering works. This condition is considered to provide sufficient arrangements under section 6.61.

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. Public utility infrastructure includes the supply of water, electricity and disposal and management of sewage.

The requirements in section 6.67 are satisfied.

Section 6.68 – Emergency Evacuation Management Plan

Section 6.68 states that development consent must not be granted to subdivision of land unless the consent authority is satisfied that an emergency evacuation management plan will be prepared and implemented in accordance with the requirements in the section.

The Proposed Development does not alter the approved evacuation and emergency route and plan, which was established under Stage 2 DA (DA15/1216) between the Central Precinct and Henry Lawson Avenue. The proposed connection between Wianamatta Parkway and the East West Connector Road will provide evacuation to the west in the event of an emergency. Further, a report prepared by Molino Steward dated 22 May 2020 confirms that Stage 3 can be safely evacuated. Notwithstanding the above, condition 72A requires the preparation of an emergency evacuation management plan in accordance with the section.

Section 6.69 – Subsidence risk

The parties have considered the matters set out in section 6.69(3) and conclude that the Proposed Development is responsive to the risk of subsidence.

In compliance with section 6.69(4), the Proposed Development is designed, sited and will be managed to avoid any significant adverse impact on the development and the land surrounding the development and the development will appropriately manage wastewater, stormwater and drainage across the site so as to not affect the rate, volume and quality of water leaving the land.”

16. I also note and accept the advice of the parties that this Stage 3 development is properly characterised as residential development and that the proposed earthworks are both: (1) ancillary to the residential development, and (2) not proposed to be carried out independently of the residential development. As such, and under s 49 of Pt 3 of Sch 3 of the Environmental Planning and Assessment Regulation 2021, the proposal is not properly characterised as designated development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

17. 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.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. 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.

19. 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 in 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).

20. 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)

21. 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.

22. 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 residential development. The requirements of Ch 4 have been satisfied.

Other considerations

23. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions.

Conclusion

24. 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.

25. 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

26. The Court notes that Penrith City Council, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulations 2021 to the Applicant amending Development Application No 23/0375 to include the plans and documents indicated at Annexure A.

Orders

27. 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 23/0375 is determined by grant of consent for staged urban development including earthworks, road and intersection delivery, subdivision to create 31 Torrens title residential lots and three residue lots, associated civil works, landscaping and “green links" at Lots 1, 2, 3 and 6 in Deposited Plan 1248480 (Wianamatta Parkway, Jordan Springs NSW 2474), subject to the conditions of consent in Annexure B.

P Walsh

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 23 July 2024