NSWSPV 23 Pty Ltd v Blacktown City Council

Case •

[2023] NSWLEC 1531

•

14 September 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: NSWSPV 23 Pty Ltd v Blacktown City Council [2023] NSWLEC 1531
Hearing dates: Conciliation conference on 6 July and 3 August 2023
Date of orders: 14 September 2023
Decision date: 14 September 2023
Jurisdiction:Class 1
Before: Washington AC
Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Development Application DA 21-00753 (as amended) for the Torrens Title subdivision of 1 lot into 14 lots including, associated site earth and drainage works and retaining walls and the planting of street trees at 175 Tallawong Road, Rouse Hill is determined by the grant of consent subject to the conditions set out in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – Torrens title subdivision – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) s 4.6

Biodiversity Conservation Act 2016

State Environmental Planning Policy (Precincts - Central River City) 2021 s 3.9, Appendix 12 s 18A

State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 9.4, 9.5

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 12 cll 2.6, 4.1AA, 6.1

Category:Principal judgment
Parties: NSWSPV 23 Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation:

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

Solicitors:
Storey & Gough (Applicant)
Bartier Perry (Respondent)
File Number(s): 2023/111751
Publication restriction: No

Judgment

  1. COMMISSIONER: These Class 1 proceedings have been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act), and arise as a result of the actual refusal of development application No DA 21-00753. This development application seeks consent for a 14 lot Torrens title subdivision with associated site, earth and drainage works, construction of retaining walls and the planting of street trees at 175 Tallawong Road, Rouse Hill, legally known as Lot 450 DP 1271601.

  2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 July and 3 August 2023. I presided over the conciliation conference.

  3. After 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 development consent to the development application 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 this decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

  5. The development application was submitted with the written consent of the registered proprietor of the subject site.

  6. The development application was appropriately notified by the Respondent between 5 May 2021 and 19 May 2021, and no submissions were received. The Parties submit, and I accept, that the amendments to the application that arise from this conciliation process are such that re-notification of the development application is not necessary.

  7. Pursuant to the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6, I must consider whether the land is contaminated. Based on the parties’ submission and the Assessment of Contamination and Salinity Risks prepared by Woodlots and Wetlands, dated 13 November 2021, that accompanies the development application I accept that the site is not considered to be contaminated and is suitable for the intended purpose.

  8. Pursuant to the requirements of the Biodiversity Conservation Act2016, the parties submit, and I accept, that as the site has been cleared, there are no trees or vegetation present, and the proposed development is not likely to significantly affect any threatened species. The development application does not generate a requirement for a Biodiversity Development Assessment Report.

  9. The development application was lodged, but not finally determined, prior to 21 November 2022, and as a result the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity) apply to the site. The site is within the Hawkesbury Nepean River catchment and is subject to the general planning considerations in s 9.4 of the SEPP Biodiversity. The parties submit, and I accept, that the development application as amended is consistent with the general planning considerations listed in s 9.4, and also with the strategies outlined in s 9.5 of the SEPP Biodiversity.

  10. State Environmental Planning Policy (Precincts—Central River City) 2021 (Central River City SEPP) came into force on 1 March 2022. The savings provisions of the Central River City SEPP, at cl 3.9, and cl 1.8A of Appendix 12, provide that if the application was made before the commencement of the Central River City SEPP, it must be determined as if it had not commenced. Subsequently, Appendix 12 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP SRGC) applies to this application. Appendix 12 of the SEPP SRGC is the Blacktown Growth Centres Precinct Plan 2013 (Precinct Plan). Pursuant to the requirements of the Precinct Plan:

  1. The site is zoned R3 Medium Density Residential, within which development for the purposes of subdivision is permissible with consent, pursuant to cl 2.6.

  2. The site is not subject to a minimum lot size standard.

  3. Clause 4.1AA permits subdivision of lots less than 300m2 (but not less than 225m2) in this zone, 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. The development application subsequently includes a building envelope plan for each lot less than 300m2, demonstrating it meets this requirement.

  4. The proposed subdivision meets the required minimum density of 25 dwellings per hectare with a proposed density of 35 dwellings per hectare.

  5. Pursuant to the requirements of cl 6.1 the parties submit, and I accept, that all essential services listed in this clause are either available, or will be available, when required.

  1. For these reasons, 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 under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

  3. The Court notes:

  1. Blacktown City Council (the Council) as the relevant consent authority has agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA 21-00753 the subject of these proceedings as shown in the following amended plans and details:

  1. Detail Survey S.15854 Rev B dated 7 July 2023 by PS Graham & Associates.

  2. Building Envelope Plan S.15854 Rev G dated 22 August 2023 by PS Graham & Associates.

  3. Public Domain Plan S.15854 Rev F dated 22 August 2023 by PS Graham & Associates.

  4. Plan of Proposed Subdivision S.15854 Rev F dated 22 August 2023 by PS Graham & Associates.

  5. Typical House Design – Lot 2 - AND-36519 Rev B dated ‘NOV 22’ by Dual Group.

  6. Civil Engineering Drawing – 02698_100 Rev A dated 1 December 2022 by C&M Consulting Engineers.

  7. Civil Engineering Drawing – 02698-201 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  8. Civil Engineering Drawing – 02698-231 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  9. Civil Engineering Drawing – 02698-301 Rev A dated 5 December 2022 by C&M Consulting Engineers.

  10. Civil Engineering Drawing – 02698-351 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  11. Civil Engineering Drawing – 02698-501 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  12. Civil Engineering Drawing – 02698-502 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  13. Civil Engineering Drawing – 02698-503 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  14. Civil Engineering Drawing – 02698-601 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  15. Civil Engineering Drawing – 02698-621 Rev A dated 5 December 2022 by C&M Consulting Engineers.

  16. Civil Engineering Drawing – 02698-631 Rev A dated 5 December 2022 by C&M Consulting Engineers.

  17. Civil Engineering Drawing – 02698701 Rev B dated 12 July 2023 by C&M Consulting Engineers.

  1. The Court orders:

  1. The Appeal is upheld.

  2. Development Application DA 21-00753 (as amended) for the Torrens Title subdivision of 1 lot into 14 lots including, associated site earth and drainage works and retaining walls and the planting of street trees at 175 Tallawong Road, Rouse Hill is determined by the grant of consent subject to the conditions set out in Annexure A to this agreement.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (307990, pdf)

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Decision last updated: 14 September 2023

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