O'Connell Street Caddens Pty Ltd ATF O'Connell Street Caddens Unit Trust v Penrith City Council

[2025] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:

O’Connell Street Caddens Pty Ltd ATF O’Connell Street Caddens Unit Trust v Penrith City Council [2025] NSWLEC 1192

Hearing dates:

Conciliation conference on 4 March 2025

Date of orders:

01 April 2025

Decision date:

01 April 2025

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA23/0799 for the construction of eighteen (18) semi-detached dwellings and six (6) attached dwellings including associated site works, landscaping and community title subdivision at 46-66 O’Connell Street, Caddens is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

Biodiversity Conservation Regulation 2017

Environmental Planning and Assessment Regulation 2021, s 38

Penrith Local Environmental Plan 2010, cll 7.7, 7.30

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7,6.8, 6.9, 6.10, Ch 6, Pt 6.2, Div 2

State Environmental Planning Policy (Resilience and Hazard) 2021, s 4.6

Cases Cited:

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

O'Connell Street Caddens Pty Ltd ATF O'Connell Street Caddens Unit Trust v Penrith City Council [2022] NSWLEC 1330

Category:

Principal judgment

Parties:

O’Connell Street Caddens Pty Ltd ATF O’Connell Street Caddens Unit Trust (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/433607

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal was lodged by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns the deemed refusal by Penrith City Council (Council) of development application number DA23/0799 (DA). The DA seeks consent for the construction of eighteen (18) semi-detached dwellings and six (6) attached dwellings and associated site works, landscaping and community title subdivision at 46-66 O’Connell Street, Caddens (site).

Background

2. The site is the subject of a previous development consent DA/21/0323 which remains operative over the site.

3. On 24 June 2022, DA/21/0323 was determined by the grant of development consent by the Land and Environment Court (O'Connell Street Caddens Pty Ltd ATF O'Connell Street Caddens Unit Trust v Penrith City Council [2022] NSWLEC 1330 (‘O’Connell Street’) for a staged community title subdivision of the land into 119 residential lots, 1 residue lot and 4 super lots and the carrying out of civil works, earthworks, and associated landscaping (Base Development Consent). Subdivision works for this development consent are presently being carried out on the site.

4. The subject DA seeks for the further subdivision of one of the four super lots originally approved (Approved Lot 1101).

Conciliation and agreement between the parties

5. After significant prior dialogue between the parties, at the parties’ request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 4 March 2025, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, to address various contentions, and subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed jurisdictional note received by the Court on 4 March 2025.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazard) 2021

7. Chapter 4 relates to remediation of land, with s 4.6 requiring a consent authority to consider whether the land is contaminated, and if the land is contaminated ensure that it is satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted. The matter of contamination and remediation was considered in the determination of the Base Development Consent included the required major earthworks relating to bringing the site forward as an area suitable for residential development. There were Detailed Site Investigations, associated with contamination, undertaken in relation to this Base Development Consent.

8. The Court’s findings in relation to the Base Development Consent included that "the potential for contamination of land is low and that the site can be made suitable for the proposed development" (O'Connell Street [6]). Condition 35 of the Base Development Consent, provided that any fill imported to the site be suitably classified and certified.

9. In respect to the matter before me, the proposed conditions of consent incorporate an unexpected finds protocol and appropriate mechanisms for the remediation of any contaminated materials, should they be encountered (see Condition 18). I am satisfied that the requirements of s 4.6 have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

10. The site is identified within the Hawkesbury Nepean Catchment, a regulated catchment under Part 6.2 of Chapter 6 and therefore the DA is subject to relevant provisions Div 2 which raise jurisdictional tests.

11. Section 6.6 is concerned with water quality and quantity. In relation to subs 6.6(2)(a), the parties agree and I am satisfied that the proposal’s effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial. In support of their position, the parties provided an extract of the MUSIC modelling (considered by the parties’ experts in joint conferencing) which indicated significant reductions in residual pollutant loads as a consequence of proposed works (jurisdictional note par 30). Consistent with the advice of the parties I am also satisfied, in relation to subs 6.6(2)(a), that the impact on water flow in a natural waterbody will be minimised. The parties provided excerpts from DRAINS modelling which confirms that the post-development flows are reduced from the pre-development scenario (jurisdictional note par 30).

12. Section 6.7 is concerned with aquatic ecology. Subsection 6.7(2) provides a series of related points with which a consent authority must be satisfied prior to the grant of consent. I accept the parties’ agreed advice that it is only the first two provisions which have any pertinence to the matter at hand.

13. In relation to subs 6.7(2)(a), I am satisfied that the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development mindful of my findings with respect to water quality and quantity and given the parties advice indicating no significant clearing is required with this DA. In relation to subs 6.7(2)(b), and on the advice of the parties, I am satisfied that the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves as the site is not nearby any identified aquatic reserve, and as a result of the treatment of stormwater run-off.

14. In relation to s 6.8 ('Flooding') - the subject site is not identified on flood liable land. In relation to s 6.9 ('Recreation and Public Access) – I am satisfied that the proposed development would not have any impact on the available public access to nearby natural waterbodies - and will maintain the existing access arrangements. In relation to s 6.10 ('Total Catchment Management') - the subject site is not in close proximity to any boundaries with a neighbouring local government authority. Council advises it has considered the application as amended and accepts that the proposed development is unlikely to have an adverse environmental impact In the regulated catchment area. Section 6.10 is also satisfactoriy resolved.

Penrith Local Environmental Plan 2010

15. The land is zoned R3 – Medium Density Residential and the proposal is permissible with consent.

16. I accept the parties advise that the proposal does not breach any development standards.

17. Clause 7.7 is concerned with site servicing. On the advice of the parties, I am satisfied that relevant services will be available (jurisdictional note par 44).

18. Clause 7.30 is concerned with urban heat. Subclause 7.30(3) requires the consent authority to be satisfied that planning and design measures are incorporated to reduce the urban heat island effect with respect to a series of different points. This was an initial point of contention between the parties, and in particular the town planning experts. The parties have now come to an agreement that the Court can be satisfied with respect to subcl 7.30(3). The particulars were documented in a detailed assessment of the amended proposal against subcl 7.30(3) (Tab 7 of s 34 Agreement Bundle received by the Court on 4 March 2025). The findings of this detailed assessment were considered in joint conferencing between the town planning experts (reference pars 9-12 of the joint town planning report filed 26 February 2025). I have reviewed and except the agreed findings of the town planning experts and am satisfied with respect to subcl 7.30(3).

Other considerations

19. The parties’ jurisdictional note included explanatory commentary in relation to both the Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017, explaining how relevant provisions have been addressed. In this instance I do not see a need for any jurisdictional findings with respect to these provisions

20. The parties advise that required notification has been undertaken and no submissions were received.

Conclusion

21. Based on the above reasoning, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the proposal generally.

Notation

23. The Court notes that Penrith City Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application will DA23/0799 to incorporate the documents listed below:

Dwg No.	Rev.	Drawing Title		Prepared By	Dated
Amended Architectural Plans
A000	G	Development Application		Tony Owens Partners Architects	28.02.25
A002	G	Proposed Master Site Plan		Tony Owens Partners Architects	28.02.25
A003	G	Concept Community Subdivision Plan		Tony Owens Partners Architects	28.02.25
A004	G	Proposed Site Plan		Tony Owens Partners Architects	28.02.25
A005	G	Proposed Cut & Fill, Waste / Site Erosion & Sediment Management Plan		Tony Owens Partners Architects	28.02.25
A008	G	Proposed Roof Plan		Tony Owens Partners Architects	28.02.25
A009	G	Building Height Plan		Tony Owens Partners Architects	28.02.25
A100	G	Lower Ground Floor		Tony Owens Partners Architects	28.02.25
A101	G	Ground Level Floor		Tony Owens Partners Architects	28.02.25
A102	G	Level 1		Tony Owens Partners Architects	28.02.25
A104	G	Typical Unit Type Ground and First Floor Plan		Tony Owens Partners Architects	28.02.25
A105	G	Typical Townhouse Type Floor Plan		Tony Owens Partners Architects	28.02.25
A106	G	Typical Townhouse Type Floor Plan		Tony Owens Partners Architects	28.02.25
A107	G	Typical Townhouse Type Floor Plan		Tony Owens Partners Architects	28.02.25
A200	G	Longitudinal Elevations		Tony Owens Partners Architects	28.02.25
A210	G	Typical Townhouse Type Elevation		Tony Owens Partners Architects	28.02.25
A211	G	Typical Townhouse Type Elevation		Tony Owens Partners Architects	28.02.25
A212	G	Typical Townhouse Type Elevation		Tony Owens Partners Architects	28.02.25
A311	G	Lot Sections 1		Tony Owens Partners Architects	28.02.25
A312	G	Lot Sections 2		Tony Owens Partners Architects	28.02.25
A313	G	Lot Sections 3		Tony Owens Partners Architects	28.02.25
A314	G	Lot Sections 4		Tony Owens Partners Architects	28.02.25
A315	G	Lot Sections 5		Tony Owens Partners Architects	28.02.25
A316	G	Lot Sections 6		Tony Owens Partners Architects	28.02.25
A317	G	Longitudinal Sections		Tony Owens Partners Architects	28.02.25
A318	G	Lot 1 Sectional Diagrams 1		Tony Owens Partners Architects	28.02.25
A319	G	Lot 1 Sectional Diagrams 2		Tony Owens Partners Architects	28.02.25
A321	G	Site Fence Condition Details 1		Tony Owens Partners Architects	28.02.25
A322	G	Site Fence Condition Details 2		Tony Owens Partners Architects	28.02.25
A323	G	Site Fence Condition Details 3		Tony Owens Partners Architects	28.02.25
A324	G	Pedestrian Access Fence Conditions		Tony Owens Partners Architects	28.02.25
A325	G	Proposed Fence Plan Diagram		Tony Owens Partners Architects	28.02.25
A326	G	Proposed Cul-De-Sac Sections		Tony Owens Partners Architects	28.02.25
A901	G	Window Schedule		Tony Owens Partners Architects	28.02.25
A902	G	Window Schedule		Tony Owens Partners Architects	28.02.25
A903	G	Door Schedule		Tony Owens Partners Architects	28.02.25
Landscape Plans
S3-000	I	Landscape Coversheet		Site Image	28.02.25
S3-100	I	Landscape Masterplan		Site Image	28.02.25
S3-101	I	Landscape Plan		Site Image	28.02.25
S3-102	I	Landscape Plan		Site Image	28.02.25
S3-301	I	Landscape Plan - Typical Units		Site Image	28.02.25
S3-501	I	Landscape Details		Site Image	28.02.25
S3-502	I	Landscape Details		Site Image	28.02.25
S3-503	I	Landscape Details		Site Image	28.02.25
S3-601	I	Landscape Elevations		Site Image	28.02.25
S3-602	I	Landscape Sections		Site Image	28.02.25
Amended Civil Plans
P00651-CI-DA-S34-1001	E	Cover Sheet, Locality Plan and Drawing Schedule		GDS	26.02.25
P00651-CI-DA-S34-1021	E	General Notes		GDS	26.02.25
P00651-CI-DA-S34-1051	E	Existing Site Survey and Services		GDS	26.02.25
P00651-CI-DA-S34-1101	E	Erosion and Sediment Control Plan		GDS	26.02.25
P00651-CI-DA-S34-1131	E	Erosion and Sediment control Details		GDS	26.02.25
P00651-CI-DA-S34-1201	E	Cut and Fill Earthworks Plan		GDS	26.02.25
P00651-CI-DA-S34-1231	E	Site Sections - Sheet 1		GDS	26.02.25
P00651-CI-DA-S34-1232	E	Site Sections - Sheet 2		GDS	26.02.25
P00651-CI-DA-S34-1233	E	Site Sections - Sheet 3		GDS	26.02.25
00651-CI-DA-S34-1300	E	Existing Stormwater Catchment Plan		GDS	26.02.25
P00651-CI-DA-S34-1301	E	Stormwater Drainage Catchment Plan		GDS	26.02.25
P00651-CI-DA-S34-1321	E	Civil Works and Stormwater Drainage Plan		GDS	26.02.25
P00651-CI-DA-S34-1411	E	Bioretention Basin 2 Sections		GDS	26.02.25
P00651-CI-DA-S34-1441	E	Stormwater Drainage Longitudinal Sections		GDS	26.02.25
P00651-CI-DA-S34-1461	E	Stormwater Drainage Calcs Sheet 1		GDS	26.02.25
P00651-CI-DA-S34-1462	E	Stormwater Drainage Calcs Sheet 2		GDS	26.02.25
P00651-CI-DA-S34-1601	E	Retaining Wall Locality Plan		GDS	26.02.25
P00651-CI-DA-S34-1621	E	Retaining Wall Longitudinal Sections Sheet 1		GDS	26.02.25
P00651-CI-DA-S34-1622	E	Retaining Wall Longitudinal Sections Sheet 2		GDS	26.02.25
P00651-CI-DA-S34-1623	E	Retaining Wall Longitudinal Sections Sheet 3		GDS	26.02.25
Supporting Documentation
Document Title			Prepared By		Dated
Proposed Cul-De-Sac Concept Layout			Stanbury Traffic Planning		14.02.25
Addendum Biodiversity Development Assessment Report			Cumberland Ecology		28.02.25
BASIX Certificate No. 1784068M			Eco Engineering Group		18.02.25
BASIX Assessment Report			Eco Engineering Group		18.02.25
Estimated Development Cost Report			Mitchell Brandtman		18.02.25
Urban Heat Assessment Letter			Think Planners		13.02.25

Orders

24. The Court orders:

1. The appeal is upheld.

2. Development Application DA23/0799 for the construction of eighteen (18) semi-detached dwellings and six (6) attached dwellings including associated site works, landscaping and community title subdivision at 46-66 O'Connell Street, Caddens is determined by the grant of consent subject to conditions contained in Annexure A.

……………………….

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 01 April 2025