Mirvac Homes (NSW) Pty Limited v Canterbury Bankstown Council

Case •

[2022] NSWLEC 1301

•

16 June 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Mirvac Homes (NSW) Pty Limited v Canterbury Bankstown Council [2022] NSWLEC 1301
Hearing dates: Conciliation conference on 16 May 2022
Date of orders: 16 June 2022
Decision date: 16 June 2022
Jurisdiction:Class 1
Before: Chilcott C
Decision:

Orders – see [20].

Catchwords:

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

Legislation Cited:

Bankstown Local Environmental Plan 2015, cll 2.3, 4.1, 6.4A, 6.11

Biodiversity Conservation Act 2016

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

Environmental Planning and Assessment Regulation 2000, cll 55, 77

Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment

Land and Environment Court Act 1979, s 34

Marine Estate Management Act 2014

State Environmental Planning Policy No. 19 – Bushland in Urban Areas

State Environmental Planning Policy 55 – Remediation of Land

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Ch 11, cl 6.8

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, cll 2.7, 2.8, 2.10, 2.11, 2.12, 4.6, Sch 1

State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.121

Texts Cited:

Bankstown City Council, Development Engineering Standards, 2009

Bankstown Development Control Plan 2015

Canterbury-Bankstown Community Participation Plan (November 2019)
Canterbury Bankstown Council, Section 94A Contributions Plan, 2009

Draft Bankstown Consolidated Development Control Plan

Draft Canterbury-Bankstown Local Environmental Plan 2021

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Category:Principal judgment
Parties: Mirvac Homes (NSW) Pty Limited (Applicant)
Canterbury Bankstown Council (Respondent)
Representation:

Counsel:
M Staunton (Applicant)
C Ireland (Respondent)

Solicitors:
Minter Ellison (Applicants)
Canterbury Bankstown Council (Respondent)
File Number(s): 2020/267217
Publication restriction: No

Judgment

  1. COMMISSIONER: Mirvac Homes (NSW) Pty Limited (the Applicant) has appealed the deemed refusal by Canterbury Bankstown Council (the Respondent) of its development application DA-1107/2019, made with owner’s consent, seeking consent for subdivision of 27 existing lots into 6 lots under Torrens title (the Proposed Development) at the former Riverland Golf Course at 56 Prescott Parade, and 123 and 123A Raleigh Road, and 67, 67A, 80, 80A, 90 and 100 Auld Avenue, Milperra (the Subject Site).

  2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

  3. The Proposed Development was notified and advertised for a period of 21 days from 19 February 2020 until 11 March 2020, in accordance with the requirements of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and the Canterbury-Bankstown Community Participation Plan (CBCPP). Forty-eight (48) submissions were received in relation to the original application.

  4. On 14 July 2021, the Applicant was granted leave to rely on amended plans and reports (the Amended DA).

  5. The Amended DA was notified and advertised for a period of 21 days from 11 to 30 August 2021, in accordance with the requirements of the CBCPP. Thirty-seven (37) submissions were received.

  6. The DA was further amended (the Further Amended DA) with the consent of the Respondent to include the amended plans and additional documents arising from changes to the lot layout and the recommendations of a joint expert report on traffic in related proceedings (the Final Amendments).

  7. The Further Amended DA, including the Final Amendments, were uploaded onto the NSW Planning Portal on 15 May 2022, and a package of documents containing the Final Amendments was provided to the Court on 16 May 2022.

  8. The Court notes that the Applicant’s Further Amended DA in this appeal:

  1. is one of four development applications concerning the redevelopment of land generally identified as the former Riverlands Golf Course site;

  2. together with the three other related applications, reflects the following amendments to the Applicant’s proposals for redevelopment of the Riverlands Golf Course site:

  1. the Applicant’s originally proposed approximately 14,100m2 of parklands would now provide total parklands with an area of approximately 24,600m2 representing an 74% increase in area of parklands provided as part of the redevelopment compared to the Applicant’s original redevelopment proposal, including:

  1. an area referred to as the Southern Park originally proposed with an area of 8,480m2 is now proposed to have an area of 19,350m2 (1.935 ha);

  2. an area referred to as the eastern park with an area of 1,114m2 remains unchanged;

  3. an area referred to as the central park with an area of 3,893m2 remains unchanged;

  1. a lot in the extreme northwest of the Riverlands Golf Course site remains unchanged with an area of approximately 623m2, and is zoned RE2 Private Recreation;

  2. some slight changes in the design of the central “J-shape” block resulting in the number of proposed allotments through subdivision of the former Riverlands Golf Course being reduced form the 187 allotments, as originally proposed, to 180 allotments;

  3. the proposed intersections of Keys Pde with a road identified as Road 1 have been realigned in line with the recommendations of the Parties’ expert traffic engineers;

  4. the subdivision layout has been amended to include:

  1. three lots (accommodating six dwellings) in place of a previously proposed north western park;

  2. better north/south vegetation connectivity between proposed Road 10 and the M5 corridor;

  3. the inclusion of a Linear Park with an area of 745m2;

  4. the addition of a park identified as Park 03 to provide a north/south pedestrian connection to provide separation between homes fronting proposed Roads 1 and 2;

  5. a southern part of the site that was previously proposed to be subdivided to into 54 lots (accommodating 96 dwellings) has been reduced to a subdivision with 42 lots (accommodating 77 dwellings);

  1. improved arboricultural outcomes, retaining an additional 37 trees, as documented in the Applicant’s revised tree retention plan contained in its March 2022 Amended Arboricultural Impact Assessment, and including:

  1. retention of a significant number of high and medium retention value trees, and no dead trees, within the Applicant’s now proposed and enlarged Southern Park;

  2. retention of the following trees which were previously proposed to be removed in Applicant’s original plans: Trees 91, 93, 95, 97-111, 145-149, 151-163, 165, 166, 168-172, 174, 175, 177, 178, 180-214, 216, 217, 216-229, B15, B16, B18 & B19.

  1. On 16 May 2022, the Parties participated in a s 34 conciliation conference and I presided over that conference. During the conference the Parties reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

  2. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection had been undertaken prior to the conciliation conference and:

  1. three objector representatives, who provided written submissions that were made available to the Court, made oral submissions during the site view:

  1. Ian G Bailey, on behalf of the NSW Bush Carers;

  2. Peter Mortimer, a private citizen adjoining the area; and

  3. Skye Virgin on behalf of Bankstown Bushland Society..

  1. objector representatives reiterated concerns in relation to:

  1. the protection of plant communities on the Subject Site, particularly the loss of old trees and the endangered species which used them as homes;

  2. the potential ecological impacts of the Proposed Development, including whether various plant communities had been correctly identified;

  3. the connectivity of the various plant communities across the Subject Site;

  4. the potential loss of the Cumberland Plain Woodland patches across the Subject Site; and

  5. the intensity of the development and its potential impact on species such as the Green and Golden Bell Frog.

  1. At the conciliation conference, undertaken via Microsoft Teams, 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.

  2. Under s 34(3) of the Land and Environment Court Act 1979 (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.

  3. 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:

Bankstown Local Environmental Plan 2015

(1) the provisions of the Bankstown Local Environmental Plan 2015 (BLEP) apply to development on the Subject Site, and in relation to this:

  1. a draft revision of BLEP was publicly exhibited in 2020 and is currently under review by the NSW Department of Planning, Infrastructure, and the Environment, but while this is proposed that the revised LEP would apply to the Subject Site in due course, it has not been made and its provisions dos not materially impact on the Further Amended DA.

  2. the Subject Site is zoned R2 – Low Density Residential (in part), RE1 – Public Recreation (in part), and RE2 – Private Recreation (in part) under the provisions of cl 2.3 of BLEP, and the Parties have confirmed, and I am satisfied, regard has been had to the objectives of the zoning of the Subject Site in relation to the Applicant’s development application for the purposes of cl 2.3(2) of BLEP.

  3. clause 4.1 of BLEP which concerns minimum lot sizes, provides a minimum lot size for development on the Subject Site of 450m2, and in relation to this the Further Amended DA proposes the creation of six super lots which all comply with the minimum lot size provisions of cl 4.1 of BLEP;

  4. clause 6.4A which concerns riparian lands and watercourses applies to the Further Amended DA, and:

  1. the Further Amended DA does not include any physical works; and

  2. the Further Amended DA is designed, sited and will be managed to avoid any significant adverse environmental impact in accordance with the provisions cl 6.4A of the BLEP;

  1. clause 6.11 which concerns development on the Riverlands Golf Course Site applies to the Further Amended DA, and the Parties agree, and I am satisfied, that the Applicant’s amended Statement of Environmental Effects prepared by Mersonn Pty Ltd and included in the Final Amendments documents, demonstrates that the Further Amended DA is consistent with the objectives in subcl 6.11(2) of BLEP and satisfies the provisions in subcl 6.11(3) of BLEP;

Bankstown Development Control Plan 2015 (BDCP)

(2) the provisions of Bankstown Development Control Plan 2015 (BDCP) apply to development on the Subject Land, and in relation to these:

  1. a draft Bankstown Consolidated Development Control Plan, was publicly exhibited until 5 March 2021 but has not been adopted. It is currently under review. Notwithstanding this, the Parties have confirmed, and I am satisfied, that the provisions of the draft consolidated DCP do not materially impact on the Further Amended DA.

  2. noting that the Further Amended DA does not propose any physical works, the Parties agree, and I accept, that the Further Amended DA can be approved having regard to the provisions BDCP and as required under s 4.15(1)(a)(iii) of the EP&A Act.

Bankstown City Council Development Engineering Standards 2009

(3) the Parties agree, and I am satisfied, that the Further Amended DA can be approved having regard to the controls in the Bankstown City Council’s Development Engineering Standards.

Canterbury Bankstown Council Section 94A Contributions Plan 2009

(4) the Parties agree, and I am satisfied, that the Further Amended DA can be approved having regard to the requirements of the Canterbury Bankstown Council Section 94A Contributions Plan 2009 (as amended).

Biodiversity Conservation Act 2016

(5) the Parties agree, and I am satisfied, that, noting that the Applicant’s Further Amended DA does not include and physical works, a biodiversity assessment report, as referred to in the provisions of Biodiversity Conservation Act 2016, is not required in relation to this appeal;

State Environmental Planning Policy (Transport and Infrastructure) 2021

(6) the Parties agree, and I am satisfied, that the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (incorporating the provisions of the former State Environmental Planning Policy (Infrastructure) 2007) (Transport and Infrastructure SEPP), in particular the provisions of cl 2.121 in Part 2, is not triggered by the Applicant’s Further Amended DA which is the subject of this proceeding.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

(7) the provisions of cl 6.8(1) in Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (incorporating the provisions of the former State Environmental Planning Policy No. 19 – Bushland in Urban Areas) (SEPP B&C) states that the clause applies to land which adjoins bushland zoned or reserved for public open space purposes, and:

  1. the part of the Subject Site that is zoned RE2 Private Recreation adjoins bushland reserved for public open space purposes; and

  2. as the Applicant’s Further Amended DA is a paper subdivision and no physical works are proposed the Parties advise, and I am satisfied, that the matters in cl 6.8(2)(c)-(e) of Chapter 6 of SEPP B&C are not impacted by the Applicant’s Further Amended DA;

(8) the provisions of Chapter 11 of SEPP B&C (incorporating the provisions of the former Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment) apply to the Applicant’s Further Amended DA, and in relation to this the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA satisfies the aims, objectives and planning principles in Chapter 11 of SEPP B&C relating to environmental protection, water quality and river flows, and planning principles that examine the impact of development on the Georges River and its tributaries;

State Environmental Planning Policy (Resilience and Hazards) 2021

(9) in relation to the provisions of Chapter of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the following provisions are of relevance to the Applicant’s Further Amended DA:

  1. in relation to the provisions of cl 2.7 of SEPP R&H, no area of coastal wetlands or littoral rainforest occurs within the development footprint for the Applicant’s Further Amended DA;

  2. in relation to the provisions of cl 2.8 of SEPP R&H, the Parties agree, and I accept, that the Applicant’s Further Amended DA will not significantly impact on:

  1. the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest; or

  2. the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest;

  1. in relation to the provisions of cl 2.10 of SEPP R&H, the Parties agree, and I accept, that the Applicant’s Further Amended DA is designed, sited and will be managed to avoid an adverse impact to:

  1. the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment;

  2. coastal environmental values and natural coastal processes;

  3. the water quality of a marine estate (within the meaning of the Marine Estate Management Act 2014), noting that the DA does not propose development on any of the sensitive coastal lakes identified in Sch 1 of SEPP R&H;

  4. marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms;

  5. existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

  6. Aboriginal cultural heritage, practices and places; and

  7. the use of the surf zone;

  1. in relation to the provisions of cl 2.11 of SEPP R&H, the Parties agree, and I am satisfied, that Applicant’s Further Amended DA is designed, sited and will be managed to avoid an adverse impact to:

  1. existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

  2. overshadowing, wind funnelling and the loss of views from public places to foreshores;

  3. the visual amenity and scenic qualities of the coast, including coastal headlands;

  4. Aboriginal cultural heritage; practices and places; and

  5. cultural and built environment heritage;

  1. in relation to cl 2.12 of this SEPP, the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA is not likely to cause increased risk of coastal hazards on the Land or any other land as no physical works are proposed;

(10) in relation to the provisions of cl 4.6 in Chapter 4 of SEPP R&H (incorporating the formerly State Environmental Planning Policy No. 55 – Remediation of Land):

  1. the Applicant has provided a detailed site investigation report prepared by Sullivan Environmental and included within the Applicant’s Final Amendments;

  2. while the Applicant’s Further Amended DA does not include any physical works or a change of use of the Subject Site, the Applicant’s detailed site investigation would satisfy the provisions of cl 4.6 of SEPP R&H should that have been required;

  3. the Applicant’s remediation action plans for the Subject Site which are provided as part of the materials accompanying the Applicant’s Further Amended DA and which relate to a related proceeding would satisfy the requirements of cl 4.6(1)-(3) of SEPP R&H, if that were required; and

  4. the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA is consistent with the provisions of SEPP R&H;

(11) the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submission of the objectors which are relevant consideration under s 4.15(1)(d) of the EP&A Act.

  1. The Parties agree, and I am satisfied, that the submissions of the objectors (see above at [10]) have been considered and the Applicant’s Further Amended DA can be approved.

  2. Having considered the advice of the Parties, provided above at [13], I agree that:

  1. 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; and

  2. 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.

  1. Further, I am 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.

  2. 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.

  3. 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.

  4. The Court notes that:

  1. the Applicant has amended Development Application No. DA-1107/2019 with the agreement of Canterbury-Bankstown Council as the relevant consent authority, pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000;

  2. the Amended Development Application has been lodged on the NSW planning portal on 15 May 2022;

  1. the Applicant has subsequently filed the Amended Development Application with the Court on 16 May 2022;

Orders

  1. The Court orders that:

  1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Court allowing the Applicant to file the Amended Development Application as agreed in accordance with the letter from the Applicant to the Respondent dated 13 May 2022;

  2. The Appeal is upheld;

  3. Development Application No. DA-1107/2019 for the re-subdivision of existing 27 lots into 6 lots under Torrens title (no works) at 56 Prescott Parade, 123 and 123A Raleigh Road, and 67, 67A, 80, 80A, 90, and 100 Auld Avenue, Milperra, also known as Lot 10 DP 731859, Lot 1 DP 625013, Lot 1 DP 813006, Lots 231 and 232 DP 805826, Lots 23–27, 38–41 and 50–59 DP 7304, Lots 21 and 22 DP 749985, and Lot 1 DP 813007 is granted development consent subject to the conditions in the Annexure "A".

………………………..

M Chilcott

Commissioner of the Court

(Annexure A) (145394, pdf)

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Decision last updated: 17 June 2022

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