Mepstead and Associates Pty Ltd v Blacktown City Council

[2021] NSWLEC 1414

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mepstead & Associates Pty Ltd v Blacktown City Council [2021] NSWLEC 1414

Hearing dates:

Conciliation conference on 21 June 2021

Date of orders:

22 July 2021

Decision date:

22 July 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [14] of Judgment.

Catchwords:

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

Legislation Cited:

Blacktown Local Environmental Plan 2015

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15(3)

Environmental Planning and Assessment Regulation 2000, cl 77 and Sch 1

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Infrastructure) 2007, cl 101

State Environmental Planning Policy No 19 - Bushland in Urban Areas

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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 12 Blacktown Growth Centres Precinct Plan, cll 1.8, 4.1, 4.1AA, 4.3, 4.4. 6.1, 6.4, 6.5

Sydney Regional Environmental Plan No 20-Hawkesbury-Nepean River (No 2-1997), cl 6(10)

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Mepstead & Associates Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/69626

Publication restriction:

No

Judgment

1. COMMISSIONER: Mepstead & Associates Pty Ltd (the Applicant) has appealed the refusal by Blacktown City Council (the Respondent) of its development application the demolition of existing structures and the staged subdivision of one lot into 52 Torrens title residential lots (the Proposed Development) on Lot 6 in DP 30211 also known as 24 Clarke Street, Rouse Hill (the Subject Site).

2. The Subject Site is zoned R2 Low Density Residential under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The Proposed Development is permissible with consent on the Subject Site.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 21 June 2021, and I presided over the conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference, and no objectors had sought to make representations to the Court in relation to the proceedings.

6. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), the Parties have confirmed, and I accept that:

1. the Applicant has provided a Combined Stage 1 Preliminary & Stage 2 Detailed Site Investigation Report (the Report) in relation to the Subject Site which was undertaken by Sydney Environmental Group (Report No:1061-PSIDSI-01-131120.v1f dated 01 December 2020);

2. the Report stated that:

1. asbestos had been detected on the Subject Site in areas of historical demolition, degradation and uncontrolled filling which may present a human health exposure risk;

2. the Subject Site can be made suitable for the proposed residential land use pending remediation of the identified asbestos contamination.

3. condition 4 of the Respondent’s proposed draft conditions of approval require the recommendations contained in Report to be carried out and for a Remediation Action Plan (RAP) to be prepared by the Applicant;

4. the Applicant has advised that a draft RAP has been prepared in accordance with the draft conditions of consent;

5. a site contamination validation report is required to be endorsed by Council prior to the Subdivision Certificate being issued consistent with proposed draft condition 14.7 to confirm that the Subject Site has been made suitable for its proposed use for residential purposes; and

6. on the basis of the above documentation and required actions (see above at [(a)] to [(e)]), I am satisfied that, as required under the provisions of cl 7(1) of SEPP55:

1. the Parties have considered whether the Subject Site is contaminated;

2. I am satisfied that the Subject Site will be suitable after remediation for the residential purpose for which the Proposed Development is proposed to be carried out; and

3. the Subject Site will be remediated before the land is used for its proposed residential purpose;

2. in relation to the provisions of Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2-1997) (SREP 20), the Parties advise, and I accept, that pursuant to cl 6(10) of SREP 20 a Total Water Cycle Management Plan is not required to be prepared as the Applicant’s proposed subdivision will not increase the intensity of development such that effluent equivalent to that produced by more than 2,500 people will be generated;

3. in relation to the provisions of State Environmental Planning Policy No. 19 - Bushland in Urban Areas (SEPP 19) the Proposed Development does not disturb bushland zoned or reserved for public open space;

4. pursuant to cl 1.8 of the Growth Centres SEPP, the provisions of Blacktown Local Environmental Plan 2015 do not apply to the Subject Site;

5. in relation to the provisions of the Growth Centres SEPP, the Parties have confirmed, and I accept, that the Applicant’s development application (as amended) satisfies applicable provisions of the Growth Centres SEPP. Where required, this satisfaction is supported through the imposition of conditions of consent within Annexure A to this judgment. In particular, the Parties have confirmed, and I accept, that the following specific provisions of the Growth Centres SEPP, including its Appendix 12 Blacktown Growth Centres Precinct Plan, have been satisfied by the Applicant’s Proposed Development (as amended):

1. clause 4.1AA of Appendix 12 of the Growth Centres SEPP applies to land zoned R2 Low Density Residential and provides that development consent may be granted to the subdivision of land to which the clause applies resulting in the creation of a lot that has an area of less than 300m² (but not less than 225m²), if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. Building Envelope Plan 5851-BEP1_C sheets 1 and 2 show the Applicant’s proposed building envelopes, each of the Applicant’s proposed lots will contain a sufficient building envelope to enable the erection of a dwelling house on each lot;

2. clause 6.1 of Appendix 12 of the Growth Centres SEPP provides that  development consent must not be granted for development on land to which this Precinct Plan applies unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. The Parties have confirmed, and I accept, that:

1. trunk sewer and water have been constructed to enable connection of the site to Sydney Water constructed mains; and

2. Endeavour Energy has advised that electricity supply to the Subject Site is available from Endeavour Energy’s Schofield ZS which currently has sufficient capacity to supply the Applicant’s proposed 52 residential lots;

3. the minimum residential density required for the Subject Site, as disclosed on the Growth Centres SEPP Residential Dwelling Density Map, is 15 dwellings per hectare. The Applicant’s Proposed Development exceeds this minimum density requirement;

4. clauses 6.4 and 6.5 of Appendix 12 of the Growth Centres SEPP do not apply as there is no existing native vegetation area as shown on the Growth Centres SEPP Native Vegetation Protection Map and no land zoned E2 Environmental Conservation, located on the Subject Site;

5. development standards for minimum subdivision lot size (clause 4.1), building height (clause 4.3) and floor space ratio (clause 4.4) apply to the Subject Site but have no applicability to the proposed subdivision that is the subject of this appeal;

6. the Subject Site is not:

1. reserved for acquisition on the Growth Centres SEPP Land Reservation Acquisition Map;

2. located within the riparian protection area on the Growth Centres SEPP Riparian Protection Area Map;

3. affected by flooding;

4. located within a cultural heritage landscape area on the Growth Centres SEPP Development Control Map;

6. in relation to the provisions of State Environmental Planning Policy (Infrastructure) 2007, the Parties have confirmed, and I accept, that:

1. the Proposed Development will not impact on any council-related infrastructure and services, on local heritage, on flood liable land and land within the coastal zone; and

2. the provisions of cl 101 do not apply to the Proposed Development as the Subject Site does not have a frontage to a state classified road;

7. the Proposed Development, as amended, was notified from 19 January 2021 to 21 February 2021 consistent with the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000. One submission was received requesting that Road No 4 be coordinated to tie in with the DA approved for the adjoining site. The Parties advise, and I accept, that they have given consideration to the submission made in response to notification of the Proposed Development in reaching agreement in this appeal.

9. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.

10. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

11. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

13. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

14. The Court orders that:

1. The Appeal is upheld.

2. The Applicant is granted leave to rely on an amended application by substituting the following plans as the plans relied upon for the purpose of the development application:

Plans by Mepstead & Associates

Dwg 5851-DET1 B dated 9 November 2020

Dwg 5851-ST1_B dated 3 May 2021:

Dwg 5851-PDP_C dated 29 June 2021

Dwg 5851-BEP1_E Sheet 1 dated 17 June 2021

Dwg 5851-BEP1_E Sheet 2 dated 17 June 2021

Civil Engineering Plans by Mepstead & Associates dated 29/06/2021:

Dwg No DA 100-01_D Sheet 1

Dwg No DA 101-01_D Sheet 2

Dwg No DA 102-01_D Sheet 3

Dwg No DA 102-02_D Sheet 4

Dwg No DA 102-03_D Sheet 5

Dwg No DA 103-01_D Sheet 6

Dwg No DA 103-02_D Sheet 7

Dwg No DA 104-01_D Sheet 8

Dwg No DA 104-02_D Sheet 9

Dwg No DA 105-01_D Sheet 10

Dwg No DA 106-01_D Sheet 11

Dwg No DA 106-02_D Sheet 12

Dwg No DA 106-03_D Sheet 13

Dwg No DA 106-04_D Sheet 14

Dwg No DA 106-05_D Sheet 15

Dwg No DA 107-01_D Sheet 16

Dwg No DA 107-02_D Sheet 17

Dwg No DA 107-03_D Sheet 18

Dwg No DA 107-04_D Sheet 19

Dwg No DA 107-05_D Sheet 20

Dwg No DA 107-06_D Sheet 21

Dwg No DA 107-07_D Sheet 22

Dwg No DA 107-08_D Sheet 23

Dwg No DA 107-09_D Sheet 24

Dwg No DA 107-10_D Sheet 25

Dwg No DA 107-11_D Sheet 26

Dwg No DA 107-12_D Sheet 27

Dwg No DA 107-13_D Sheet 28

Dwg No DA 107-14_D Sheet 29

Dwg No DA 107-15_D Sheet 30

Dwg No DA 107-16_D Sheet 31

Dwg No DA 108-01_C Sheet 32

Dwg No DA 109-01_D Sheet 33

3. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $5,000.00 within 28 days of the date of these orders.

4. Consent is granted to Development Application DA-20-02057 for the demolition of existing structures and staged subdivision of 1 lot into 52 lots with associated works including earthworks, site contamination remediation works, tree removal, construction of roads, storm water drainage and services on land known as 24 Clarke Street, Rouse Hill (legally described as Lot 6 in DP30211) in accordance with the conditions set out in Annexure A.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (444418, pdf)

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Decision last updated: 22 July 2021