MH Property No. 1 Pty Ltd v Campbelltown City Council

Case •

[2023] NSWLEC 1245

•

23 May 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: MH Property No. 1 Pty Ltd v Campbelltown City Council [2023] NSWLEC 1245
Hearing dates: 19, 20 and 21 April 2023
Date of orders: 23 May 2023
Decision date: 23 May 2023
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

(1)  the Applicant is granted leave to rely on amended plans;

(2) the Applicant is to pay the Respondents’ costs thrown away in the appeal pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed;

(3)  the appeal is upheld;

(4)  the Applicant’s Development Application No. 1/2022/DA-SW seeking consent for the demolition of existing structures, vegetation clearing, the community subdivision of land, along with associated works including civil works and revegetation/land rehabilitation works at Lots 5 and 6 in DP 1213869, also known as 192 Narellan Road, Campbelltown, is determined by the grant of consent, subject to the conditions at Annexure ‘A’;

(5)  the exhibits are returned, except Exhibits A, B, C, D, E, F, R1-2 and R2-1.

Catchwords:

DEVELOPMENT APPLICATION – community subdivision of land – Respondents confirm all contentions resolved – Respondents do not oppose grant of consent – no objector submissions received in response to notification - conditions of consent agreed – deferred commencement condition imposed – grant of consent in the public interest.

Legislation Cited:

Biodiversity Conservation Act 2016, cll ss 6.5, 7.2, 7.3, 7.5, 7.7, 7.13

Campbelltown Local Environmental Plan 2014, cll 1.8A, 2.3, 5.10, 6.1, 7.10, 7.20

Environmental Planning and Assessment Act 1979, ss 1.7, 4.15, 4.16, 8.15, 8.7, Part 4.8

Environmental Planning and Assessment Regulation 2000, cll 55, 77

Rural Fires Act, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 4, cl s 4.8

State Environmental Planning Policy (Koala Habitat Protection) 2021 cl 10

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 3, scll, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122

Water Management Act 2000

Texts Cited:

Austroads, Guide to Road Design, 2021

Campbelltown Comprehensive Koala Plan of Management 2018

Campbelltown (Sustainable Cities) Development Control Plan 2015

Category:Principal judgment
Parties: MH Property No. 1 Pty Ltd (Applicant)
Campbelltown City Council (First Respondent)
Transport for NSW (Second Respondent)
Representation:

Counsel:
M Staunton (Applicant)
M Seymour (First Respondent)
N Eastman (Second Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (First Respondent)
Transport for NSW
File Number(s): 2022/99956
Publication restriction: No

Judgment

  1. COMMISSIONER: MH Property No. 1 Pty Ltd (the Applicant) has appealed the refusal by Campbelltown City Council (the First Respondent) of Development Application No. 1/2022/DA-SW, lodged 4 January 2022, seeking consent for the demolition of existing structures, vegetation clearing, the community subdivision of land, along with associated works including civil works and revegetation/land rehabilitation works (the Proposed Development).

  2. The Proposed is proposed to be undertaken on land:

  1. at 192 Narellan Road, Campbelltown (legally described as Lot 5 in Deposited Plan 1213869), hereafter referred to as Lot 5, and which is the lot proposed for community subdivision;

  2. on the adjoining Lot 6 in Deposited Plan 1213869 (referred to hereafter as Lot 6) in relation to certain access related works; and

  3. in the adjoining Narellan Road road reserve, referred to hereafter as the road reserve, which is under the control of the Second Respondent in the proceedings.

  1. Together, Lot 5, Lot 6 and the road reserve form the ‘Subject Site’ in the proceedings.

  2. Lot 5, which is the subject of the Applicant’s proposed subdivision, is owned by the Franciscan Order of Friars Minor and has:

  1. a total site area of 127.71 hectares;

  2. historically formed part of the curtilage of the Friary which is located to the east of Lot 5;

  3. a frontage to Narellan Road, Campbelltown, although access is provided via a privately owned circular road / driveway which also services the Friary crosses the Site in the north and south and which provides access to Narellan Road over an existing driveway and associated right of carriageway which burdens Lot 6 1213869.

  1. Lot 5 contains an online dam that extends from the centre of the Lot to the southeast towards Narellan Road (referred to as Dam 1) and is located along the upper reaches of Bow Bowing Creek (a tributary of the Georges River). Dam 1 has been previously advised to not be a ‘prescribed’ dam by the former NSW Dam Safety Committee (Letter dated 10 November 2017).

  2. Lot 5 in Deposited Plan 1213869 is partially zoned B7 Business Park and RE2 Private Recreation under the version of Campbelltown Local Environmental Plan 2015 (CLEP), in force at the time that DA No. 1/2022/DA-SW was lodged. This is shown in the figure below which is an extract of the zoning map and in which the Subject Site is outlined in yellow, and which was Figure 1 on the First Respondent’s Amended Statement of Facts and Contentions (ASoFaC).

  1. Lots 5 and 6 form part of the Maryfields Estate which is an urban release area situated in the suburb of Campbelltown and historically used for religious activities by the Franciscan Order of Friars Minor and Poor Clare Nuns. The masterplan for the Estate identifies four precincts with varying land uses across four stages. Lot 5 and Lots 6 form Stages 1B and 1A respectively, and are illustrated in the following figure, which was Figure 3 in the ASoFaC.

The Application is amended

  1. On 2 February 2023, the Applicant was granted leave to amend the development application the subject of the proceedings and to rely upon amended plans and documents

  2. On 22 March 2023, the Applicant was granted leave to amend further its development application the subject of the proceedings and to rely upon amended documents, including a Biodiversity Development Assessment Report (BDAR).

  3. During the hearing, the Applicant sought leave to amend further its development application, and to rely on upon plans and associated documentation identified at condition 1 in Annexure A to this judgment.

  4. The Respondents confirmed that they had no objection to the Applicant’s request, subject to the Court making an order as to the Respondents’ costs dealing with the Applicant’s amended plans pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

  5. The Applicant confirmed that it did not oppose the costs order sought, and:

  1. the Court, standing in the shoes of the consent authority, agreed that the development application be amended pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation); and

  2. the Applicant was granted leave to rely on its amended plans and associated documentation in the proceedings.

The Proposed Development as amended

  1. The amended Proposed Development as it now comes before the Court proposes:

  1. demolition of all existing structures including an existing track and associated fencing;

  2. clearing of vegetation and the removal of existing channels and ponds;

  3. landscaping throughout the subdivision, including around the lake and surrounding riparian zones;

  4. regeneration, revegetation and long-term management of the community property;

  5. community title subdivision of Lot 5 in Deposited Plan 1213869 into 13 lots, made up of:

  1. proposed Community Property Lot 1 (over two parts: Part 1 51,710m2 and Part 2 7,732m2) to contain existing dam and existing riparian land regeneration and revegetation; and

  2. proposed Lots 2 – 13 (between 3,150m2 and 5,853m2 in size) for future private ownership and development under separate development applications.

  1. subdivision of Lot 6 in Deposited Plan 1213869 (resulting in the creation of Part 57) into two parts with one part to be dedicated as public road;

  2. civil works including:

  1. grading and levelling to facilitate subdivision and works on part of the site;

  2. construction of three roads (20m wide) and of variable length;

  3. construction of culvert crossings to convey flows into the main dam under roads identified in plans as Road 01 and Road 02;

  4. retention of the existing dam, formalising of the internal edge using stacked rock retaining walls or battering of slopes and raising of an approved 16 m wide outlet weir structure by 0.1 m for the purposes of controlling flood impacts and with the intent of meeting on site detention requirements; and

  5. construction of one gross pollutant trap (Vortcel SVO.360) and installation of five floating wetland units (total of 800 m2) within the existing dam.

  1. upgrade works to the access roads from the intersection with Narellan Road, which would involve:

  1. provision of a 120m east bound left turn slip lane and an additional westbound right turn lane at the existing Narellan Road intersection;

  2. dual south bound right turn lane and shared through/left turn lane on the norther approach of the existing Narellan Road intersection; and

  3. staged pedestrian crossings on the eastern approach of the existing Narellan Road intersection;

  4. a bus and bicycle land along the northern side of Narellan Road.

  1. retiring of biodiversity offset credits in accordance with the Biodiversity Offset Scheme under the Biodiversity Conservation Act 2016 (BC Act), as detailed in the BDAR, noting that the development application proposes to satisfy this requirement by purchasing biodiversity credits within relevant trading groups or by payments to the Biodiversity Conservation Trust.

  1. The appeal is made under s 8.7(1) of the EP&A Act and falls within Class 1 of the Court’s jurisdiction. It is determined pursuant to the provisions of s 4.16 of the EP&A Act.

Notifications, consultation and objector submissions

  1. Pursuant to the provisions of cl 77 of the EP&A Regulation, the development application commenced exhibition on 2 May 2022 and concluded on 3 June 2022. No submissions were received in response to the notification.

Contentions

  1. The First Respondent had identified the following matters as contentions in the appeal:

  1. a contention in relation to the Applicant’s provision of owner’s consent to facilitate access between Narellan Road and Lot 5 which was proposed to be via an existing right of way which burdens Lot 6;

  2. a contention concerning the Applicant’s BDAR, which it said did not enable a proper assessment of the Proposed Development because:

  1. the Proposed Development triggered a requirement that it must be accompanied by an assessment, undertaken consistent with the biodiversity assessment methodology (BAM), in the form of a BDAR report, and entry into the Biodiversity Offsets Scheme (BOS) as set out in Part 7 of the BC Act; but

  1. the area of native vegetation proposed to be removed was understated;

  2. the Proposed Development is likely to have a serious and irreversible impact on Cumberland Plain Woodland Critically Endangered Ecological Community (CEEC) and the endangered Swift Parrot; and

  3. the Applicant’s BDAR had failed to incorporate sufficient measures to avoid or minimise adverse impacts on biodiversity values occurring on the Subject Site, and in particular on Lot 5; and

  1. the Applicant’s tree survey was inaccurate and lacked sufficient information such that the Applicant had not submitted a valid BDAR as required by s 7.7 of the BC Act.

  1. a contention concerning potential impacts on koalas, in relation to which the Respondent said that the Proposed Development was inconsistent with the Campbelltown Koala Plan of Management 2018 (CKPoM), as required by clause 10(2) of State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP), although the First Respondent later confirmed that the applicable koala protection regime was that within Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which is in the same terms as the Koala SEPP;

  2. a contention in relation to the Proposed Development’s impact on trees and its consistency with the provisions of cl 7.20 of CLEP, noting that the Subject Site is mapped as containing Biodiversity – Significant Vegetation as noted in the First Respondent’s Terrestrial Biodiversity Map referred to in cl 7.20(2) of CLEP;

  3. a contention concerning the provision of suitable road and vehicular access as required under cl 7.10 of CLEP in relation to essential services, and which related to the contentions filed by the Second Respondent (see below at [17]);

  4. an engineering contention that insufficient information had been submitted with the development application to enable a proper assessment of the Applicant’s proposed stormwater and engineering design, including water quality modelling and the design of, and access to, proposed gross pollutant trap facilities; and

  5. a contention concerning a lack of information in relation to a number of the drawings contained in the Applicant’s proposed landscaping plans that depicted a car parking area and structure adjoining a perimeter board walk that had been proposed for construction around the dam on Lot 5;

  6. a contention that, as a consequence of the above contentions, approval of the Proposed Development was not in the public interest.

  1. The Second Respondent had contended that the Proposed Development should not be approved as the Applicant’s plans in relation to works in the road reserve were inadequate for the following reasons:

  1. the plans depicted unsafe vehicle turning paths;

  2. a proposed eastern median strip had a width that was too narrow;

  3. the distance between pedestrian push buttons was insufficient;

  4. the plans provided insufficient pedestrian fencing;

  5. the Applicant’s plans for the staged pedestrian crossing over the eastern Narellan Road approach did not provide a required left-hand offset;

  6. the Applicant’s design did not incorporate several key labelling and identification markers as required under the Austroads Guide to Road Design.

  1. The Court was assisted in its consideration of these contentions by the Parties’ experts, as follows:

  1. the expert ecologists, Ms Rebecca Dwyer and Dr Steven Ward, for the Applicant, and Mr Nick Skelton, for the Respondent;

  2. Mr Paul Vezgoff, expert arborist, for the Applicant;

  3. the expert stormwater engineers, Mr Minh Vu, for the Applicant, and Ms Louise Collier, for the First Respondent;

  4. the expert traffic engineers, Mr Bob Staniland, for the Applicant, Mr Ben Midgley, for the First Respondent, and Mr Morgan Stanbury, for the Second Respondent;

  5. expert town planners, Mr Andrew Halmarick, for the Applicant, and Mr Aaron Essenhigh, for the First Respondent;

Statutory considerations

Environmental Planning and Assessment Act 1979

  1. The Proposed Development is subject to the provisions of EP&A Act, and in particular:

  1. section 1.7 of the EP&A Act which provides:

1.7 Application of Part 7 of Biodiversity Conservation Act 2016 and Part 7A of Fisheries Management Act 1994 (cf previous s 5AA)

This Act has effect subject to the provisions of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994 that relate to the operation of this Act in connection with the terrestrial and aquatic environment.

Note - Those Acts contain additional requirements with respect to assessments, consents and approvals under this Act.

  1. section 4.15(1) which provides:

1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

  1. section 4.15(3A), which, inter alia, provides:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority -

….

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and ….

  1. sections 4.16(2) and (3), which provide;

(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. The following provisions of SEPP B&C are of relevance in this appeal:

  1. the provisions of Chapter 4 which aims to encourage the conservation and management of areas of natural vegetation that provide habitat for koalas to support a permanent free-living population over their present range and reverse the current trend of koala population decline; and in particular

  2. the provisions of s 4.8 of SEPP B&C which confirms the development approval process on land subject to an approved koala plan of management, and which provides as follows:

4.8   Development assessment process—approved koala plan of management for land

(1)  This section applies to land to which this Chapter applies and to which an approved koala plan of management applies.

(2)  The council’s determination of the development application must be consistent with the approved koala plan of management that applies to the land.

  1. The First Respondent noted that the terms of Chapter 4 of SEPP B&C were in the same terms as the provisions of State Environmental Planning Policy (Koala Habitat Protection) 2021, which the First Respondent had identified as applying to the Applicant’s development application when it was first lodge with the First Respondent on 4 January 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. The Proposed Development is subject to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) which, inter alia, provides at s 4.6 as follows:

4.6 Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless -

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. Development on the Subject Site is subject to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I), and relevantly for the current appeal:

  1. the provisions of s 2.119 concerning development with a frontage to a classified road apply to the Proposed Development, and subs 2.119(2) requires that:

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that –

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

  1. the provisions of s 2.122 concerning traffic generating development also apply to the Proposed Development, and s 2.122(4) requires that:

(4) Before determining a development application for development to which this section applies, the consent authority must—

(a) give written notice of the application to TfNSW within 7 days after the application is made, and

(b) take into consideration—

(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including—

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

Biodiversity Conservation Act 2016

  1. The Proposed Development is subject to the provisions of the BC Act, and the following provisions are of particular relevance in this appeal:

  1. section 7.7 of the BC Act provides as follows:

(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except—

(a) an application for development consent for State significant development, or

(b) an application for a complying development certificate.

(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.

  1. section 7.2(1) concerns development or activity “likely to significantly affect threatened species”, and provides:

(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if—

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or

(c) it is carried out in a declared area of outstanding biodiversity value.

  1. section 7.3(1) concerns the test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats, and provides:

(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats—

(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity—

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c) in relation to the habitat of a threatened species or ecological community—

(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

  1. section 7.5 concerns the relationship of the BC Act to the EP&A Act, and provides:

(1) This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).

(2) A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.

  1. Section 7.13 concerns development other than State significant development or infrastructure, and, inter alia, relevantly, provides:

(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except—

(a) an application for development consent for State significant development, or

(b) an application for a complying development certificate.

(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.

(3) If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).

Campbelltown Local Environmental Plan 2015

  1. Development on the Subject Site is subject to the provisions of CLEP, and pursuant to the provisions of cl 1.8A of CLEP, the Proposed Development is determined under the version of CLEP in force at the time that the Applications development application was lodged on 4 January 2022.

  2. The following provisions of CLEP have particular application in this appeal:

  1. clause 2.3 in relation to zoning of land and under which the Subject Site is zoned B7 Business Park and RE2 Private Recreation and, in relation to which:

  1. the Proposed Development is a permissible land use on the Subject Site;

  2. the objectives of the B7 zone are:

• To provide a range of office and light industrial uses.

• To encourage employment opportunities.

• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

• To permit limited accommodation that supports employment opportunities.

• To encourage industries or business involved in scientific research or development.

• To minimise adverse impacts on the economic performance of existing and future business centres.

• To provide healthy, attractive, functional and safe business areas.

  1. the objectives of the RE2 zone are:

• To enable land to be used for private open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

• To protect and enhance areas of scenic value and the visual amenity of prominent ridgelines.

• To protect bushland, wildlife corridors and natural habitat.

• To ensure the preservation and maintenance of environmentally significant and environmentally sensitive land.

• To maximise public transport patronage and encourage walking and cycling.

  1. pursuant to subcl 2.3(2), the consent authority, or the Court on appeal, must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

  1. clause 5.10 concerning heritage and in relation to which the Respondent raises no heritage contention in this appeal;

  2. clause 6.1 in relation to arrangements for designated State public infrastructure, which provides in s 6.1(2) as follows:

(2) Development consent must not be granted for the subdivision of land in an urban release area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before the land became, or became part of, an urban release area, unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that land.

  1. clause 7.10 concerning essential services that includes the requirement that development consent must not be granted to development unless the consent authority is satisfied, inter alia, that stormwater drainage and suitable road/vehicular access will be available or that adequate arrangements have been made to make them available when required. 

  2. clause 7.20 in relation to terrestrial biodiversity which provides as follows:

(1) The objective of this clause is to maintain terrestrial biodiversity by—

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats, and

(d) maximising connectivity and minimising habitat fragmentation.

(2) This clause applies to land identified as “Areas of Biodiversity Significance”

or “Biodiversity-Habitat Corridor” on the Terrestrial Biodiversity Map.

(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider—

(a) whether the development is likely to have—

(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) any adverse impact on the habitat elements providing connectivity on the land, and

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority—

(a) has taken into account the objectives of this clause, and

(b) is satisfied that the development is sited, designed, constructed and managed to avoid adverse impacts on native biodiversity or, if an adverse impact cannot be avoided—

(i) the development minimises disturbance and adverse impacts to remnant vegetation communities, threatened species populations and their habitats, and

(ii) measures have been considered to maintain native vegetation and habitat parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii) the development includes measures to offset the loss of biodiversity values.

Campbelltown Comprehensive Koala Plan of Management

  1. The Subject Site has been mapped as containing potential koala habitat under the provisions of Campbelltown Comprehensive Koala Plan of Management 2018 (CCKPoM).

  2. Consequently, and consistent with the provisions of s 4.8(2) of SEPP B&C, the determination of the Applicant’s development application in this appeal must be consistent with the approved koala plan of management that applies to the land which is CCKPoM.

Campbelltown (Sustainable City) Development Control Plan 2015

  1. The provisions of Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP) apply to development on the Subject Site and in particular the provisions of Part 13 of Volume 2 of CDCP which provide further site-specific controls for development on the Maryland’s Estate within which the Proposed Development is located.

Resolution of contentions

  1. The contentions in the appeal were identified above (at [16] and [17]), and at the hearing the Respondents advised that their contentions in the appeal were resolved on the basis of the Applicant’s amended plans, the joint reporting and recommendations of the Parties various experts, and the Parties agreed conditions of consent which have been filed with the Court, as follows:

  1. in relation to the contention in relation to the Applicant’s provision of owner’s consent, the Respondents said, and I am satisfied, that this is resolved through the provisions of certain documentation, tendered at the hearing, that confirmed the delegation authorities of individuals who had provided owners consent on behalf of the owners of Lots 5 and 6:

  2. in relation to the contentions concerning biodiversity:

  1. the contention concerning the adequacy of the Applicant’s BDAR (see above at [16(1)]), was resolved on the basis of the Applicant’s BDAR, its amended BDAR, the joint reporting of the Parties ecology experts, the supplementary reporting with the arboricultural experts, and the First Respondent’s expert ecologist, Mr Skelton’s, written evidence, which confirmed that:

  1. the ecology experts had agreed, following a site view, that the area of native vegetation, including trees, proposed for removal, as represented in the Applicant’s amended plans, was now acceptable;

  2. the Applicant’s plans have been amended to remove a retaining wall that would have required the removal of some koala food trees;

  3. the removal of a previously proposed road over the dam on Lot 5 and a reduction of proposed bulk earthworks have avoided potential impacts on areas identified as containing Cumberland Plain Woodland CEEC;

  4. the Proposed Development, as amended, would not have a serious and irreversible impact, as defined under s 6.5 of the BC Act, on either Cumberland Plain Woodland CEEC or on populations of the Swift Parrot;

  5. the Applicant’s BDAR, together with its BDAR addendum dated 20 April 2023, along with its amended plans, had confirmed the impact of proposed tree removal, and had considered measures to avoid or minimise adverse impacts on biodiversity values occurring on the Subject Site; and

  6. the Applicant’s BDAR, including its BDAR addendum, satisfied the provisions of section 7.7 of the BC Act (see above at [24(1)]) such that, subject to the imposition of conditions to ensure that the requirements of the BDAR are implemented, the Proposed Development as amended was acceptable; and

  1. the Parties have agreed the imposition of conditions to give effect to the requirements of the Applicant’s BDAR and the recommendations of the ecologies, including conditions 17 (Biodiversity offset requirements and retirement biodiversity credits), 18 (Unexpected Ecological Impacts); 20 (Koala Safe Fencing) and 21 (Hollow offset requirements);

  2. the Parties’ also agreed that, relying on the evidence of the Parties’ expert ecologists, along with the Applicant’s written offer concerning compensatory plantings and habitat rehabilitation measures on the Subject Site, the Proposed Development, as amended, is consistent with the provisions of the CCKPoM, as well as those of SEPP B&C Chapter 4 (see above at [20]), and:

  1. the Applicant has confirmed arrangements to enter into an agreement as outlined in 7.1(iii)(b) of CCKPoM, including both a caveat being placed on the relevant parts of the Subject Site and payment of a Conservation Guarantee of $700,000; and

  2. the Parties have agreed the imposition of a deferred commencement condition requiring that the Applicant will finalise a Vegetation Management Plan (VMP) to be formally approved by the Respondent as required under Part 7.3(i)(b) of CCKPoM.

  1. in relation to the provisions of based cl 7.20 of CLEP, and based on resolution of the contentions above (at [(a)], [(b)] and [(c)]), I am satisfied that:

  1. the matters identified in cl 7.20(3) of CLEP have been considered;

  2. the objectives set out in cl 7.20(1) of CLEP have been taken into account by the Applicant in finalising the plans and other documents upon which it now relies;

  3. the Proposed Development is sited and designed, and it will be constructed and managed, so as to avoid adverse impacts on native biodiversity or, if an adverse impact cannot be avoided the Proposed Development satisfies the provisions of subcll 7.20(4)(b)(i) to (iii); and

  4. approval of the Proposed Development would be consistent with the provisions of cl 7.20 of CLEP.

  1. in relation to the Respondents’ traffic and stormwater engineering contentions, including the related matters of suitable road/vehicular access as required under cl 7.10 of CLEP (see above at [16(5)] and [17]), and the location and access arrangements associated with gross pollutant traps required for the Proposed Development (see above at [16(6)]):

  1. the contentions are resolved on the basis of the agreed evidence of the Parties’ expert traffic and stormwater engineers, the Applicant’s amended plans reflecting the recommendations of those experts, and the imposition of agreed conditions, including in relation to:

  1. maintenance access to proposed gross pollution trap facilities;

  2. access to and from the Subject Site via Narellan Road.

  1. a separate contention concerning the adequacy of the Applicant’s water quality modelling (see above at [16(6)]) has been resolved by the First Respondent’s expert, Ms Collier, confirming her acceptance of the Applicant’s water modelling and the Parties’ agreed imposition of conditions concerning water quality monitoring prior to and following construction works;

  1. the Second Respondent’s contentions that the Proposed Development should not be approved as the Applicant’s plans in relation to works in the road reserve were inadequate for the reasons identified above (at [17]), this was resolved on the basis of the Parties’ expert traffic engineers’ agreements that:

  1. the Applicant’s amended plans prepared by Craig and Rhodes (Drawings Nos. 284-20C-DA-0101 Rev I and 284-20C-DA-0103 Rev I dated 19 April 2023) which remove an encroachment on Narellan Road reserve through provision of a retaining wall situated immediately within land adjacent to the southern boundary of the Applicant’s property; and

  2. the timing of all two-stage pedestrian crossing works contained in the Applicant’s plan will be delivered concurrently;

  3. the Applicant’s amended swept path plans and intersection designs (dated 19 April 2023) are acceptable; and

  4. the imposition of the Second Respondents required conditions within the parties agreed conditions.

  1. in relation to the contention concerning the Applicant’s proposed landscaping plans (see above at [16(7)]), this was resolved through the Applicant’s amended plans that have confirmed the removal of the car parking area and associated structures for the Proposed Development;

  2. in relation to the public interest contention, because all other contentions in the appeal are resolved, and noting that there were no objector submissions in response to notification of the Applicant’s Proposed Development, I am satisfied the contention is resolved.

Conclusion

  1. On the basis of my assessment and conclusions above (at [30]), I am satisfied that approval of the Proposed Development, subject to conditions, is in the public interest, noting that:

  1. the provisions of cl 2.3(2) of CLEP require that the consent authority, or the Court on appeal, must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

  1. the Subject Site is zoned B7 and RE2 and the objectives of those zones were provided above (at [26(1)]).

  2. I am satisfied that regard has been had to the objectives of zonings applicable to the Subject Site in the determination of the Applicant’s development application.

  1. the Proposed Development is located proximate to a heritage item, that being the Mayfield Stations of the Cross on an adjoining lot, and the First Respondent confirmed that:

  1. no contention had been raised in relation to the proximity of the heritage items to the Proposed Development; and

  2. notwithstanding the presence of a heritage item on an adjacent lot, the effect of the Proposed Development on the heritage significance of the item has been considered, and I am satisfied that the Proposed Development is consistent with the provisions of cl 5.10 of CLEP concerning heritage conservation.

  1. the NSW Department of Planning and Environment has provided a Secretary’s Certificate of Satisfactory Arrangements dated 6 January 2023 as required under the provisions of cl 6.1(2) of CLEP (see above at [26(3)]);

  2. the Applicant has provided a detailed site investigation prepared by Geo-environmental engineers dated 6 December 2021, and on the basis of the conclusions in that report I am satisfied that:

  1. the Subject Site is suitable for the Applicant’s proposed land use as described within Development Application No. 1/2022/DA-SW and no further assessment or remediation and validation work is required; and

  2. the Applicant’s development application can be approved pursuant to the provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (see above at [22]);

  1. the Proposed Development, as amended, complies with the relevant controls in CDCP, or where it does not the development represents a reasonable alternative such that it merits the application of flexibility as required under the provisions of s 4.15(3A)(b) of the EP&A Act;

  2. the Applicant’s development application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act (see above at [19(2)]);

  3. the further 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 satisfied, including:

  1. those in s 4.16(2) of the EP&A Act in relation to the subdivision of land;

  2. those required under the Rural Fires Act 1997 (the RF Act), including:

  1. the issue of a Bushfire Safety Authority under s 100B of the RF Act by the NSW Rural Fire Service in its correspondence dated 22 June 2022 and 23 December 2022; and

  2. General Terms of Approval (GTAs) with conditions issued under Division 4.8 of the EP&A Act concerning the requirements for Integrated Development in relation to the RF Act.

  1. those required under the Water Management Act 2000 (the WM Act), including GTAs with conditions issued by the NSW Department of Planning and Environment, as required under the provisions of Division 4.8 of the EP&A Act concerning the requirements for Integrated Development in relation to the WM Act;

  2. those in ss 2.119 and 2.122 of SEPP (T&I) (see above at [23]), noting that Transport for NSW is the Second Respondent in these proceedings.

  1. at the conclusion of the hearing, both Respondents confirmed that they did not oppose the grant of consent to the Applicant’s development application, as amended, subject to imposition of the Parties’ agreed conditions of consent; and

  2. the Parties have filed their agreed conditions of consent, including an agreed deferred commencement condition, imposed pursuant to s 4.16(3) of the EPA Act, in relation to finalising certain matters in relation to a vegetation management plan.

  1. As a consequence of my conclusions above (at [31]), the Court is now able to make final orders to dispose of the appeal.

Orders

  1. The Court orders:

  1. the Applicant is granted leave to rely on amended plans;

  2. the Applicant is to pay the Respondents’ costs thrown away in the appeal pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed;

  3. the appeal is upheld;

  4. the Applicant’s Development Application No. 1/2022/DA-SW seeking consent for the demolition of existing structures, vegetation clearing, the community subdivision of land, along with associated works including civil works and revegetation and land rehabilitation works, at Lots 5 and 6 in DP 1213869, also known as 192 Narellan Road, Campbelltown, is determined by the grant of consent, subject to the conditions at Annexure ‘A’;

  5. the exhibits are returned, except Exhibits A, B, C, D, E, F, R1-2 & R2-1.

M Chilcott

Commissioner of the Court

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Annexure A

Decision last updated: 23 May 2023

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