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

[2024] NSWLEC 1618

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 [2024] NSWLEC 1618

Hearing dates:

Conciliation conference 25, 26 June, 29 July 2024

Date of orders:

03 October 2024

Decision date:

03 October 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs thrown away as a result of reliance on the documents at [7] as agreed or assessed.

(2) The appeal is upheld.

(3) Development application DA23/0798 for the construction of fifteen attached dwellings and two semi attached dwellings including associated site works and community title subdivision at 29 O’Connell Street, Caddens NSW (Lot 6 DP 593628) is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential dwellings – conciliation conference – amended plans and documentation – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Penrith Local Environmental Plan 2010, cll 2.3, 4.1, 4.1A, 4.1AA, 4.1B, 4.3, 6.2, 7.1, 7.3, 7.7

State Environmental Planning Policy (Resilience and Hazards), s 4.6

Cases Cited:

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

Texts Cited:

Penrith Development Control Plan 2014 

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 Sonter (Solicitor)(Applicant)
D Le Breton (Solicitor)(Respondent)

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

File Number(s):

2023/433575

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of development application DA23/0798. The development application, as amended, seeks consent for the following development at 29 O’Connell Street, Caddens NSW, Lot 6 DP 593628 (the Site):

1. community title subdivision;

2. construction of x15 attached dwellings and x2 semi-detached dwellings; and

3. associated civil and landscaping works.

2. The site is the subject of an operative consent (DA21/0323) which approved a staged community title subdivision of the parent lot into 119 residential lots, 1 residue lot and 4 super lots, along with the carrying out of civil works, earthworks and landscaping. That consent was the subject of the decision of the Court in O'Connell Street Caddens Pty Ltd ATF O'Connell Street Caddens Unit Trust v Penrith City Council [2022] NSWLEC 1330 (‘Caddens v Penrith’). This development application relates to two of the four super lots.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the 25, 26 June and 29 July 2024. I presided over the conciliation conference. following the conciliation conference agreement was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The agreed decision involves the Court upholding the appeal and granting conditional development consent to the amended development application.

4. As the presiding Commissioner, I am satisfied the decision is one the Court could have made in the proper exercise of its powers (this being the test at applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application was made by Mr Shayan Athari of Arkexpress Designs on behalf of the Applicant. The development application form confirms that the application was made with the consent of the owners of the land.

2. The development application was exhibited and notified to adjoining and nearly residents by the Respondent between 2 and 16 October 2023. The Respondent received no submissions.

3. The parties agree, and I accept, that the site for the subject development application is not mapped as Bushfire Prone Land and therefore no bushfire safety authority pursuant to s 100B(3) of the Rural Fires Act 1997 is required.

4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. In the previous decision of the Court in Caddens v Penrith, findings were made on the basis of a Detailed Site Investigation Report which concluded that he potential for contamination of land is low and that the site can be made suitable for the proposed development. The parties agree, and I accept, that no changes have been made to the site or the type of development and that I can be satisfied that the site will be suitable for the proposed use.

5. The proposed development is ‘BASIX development’ as defined by the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) and a BASIX certificate is required for the development application pursuant to s 27 of the EPA Regulation. An updated BASIX certificate has been provided as part of the amended development application satisfying these requirements.

6. The Penrith Local Environmental Plan 2010 (LEP 2010) is the relevant local environmental planning instrument which applies to the site. Pursuant to LEP 2010 the site is zoned R3 - Medium Density Residential. The proposed development, subdivision, attached dwellings and dual occupancies are permitted with consent in zone. As required by cl 2.3(2) of LEP 2010, in determining the development application I have considered the objectives of the R3 - Medium Density Residential zone.

7. The parties agree, and I accept, that as the proposed development application is for a community title development, as such cll 4.1 ‘Minimum Subdivision Lot Size’, 4.1A ‘Minimum Lot size for dual occupancies, multi dwelling housing and residential flat buildings’ and 4.1B’ Minimum Lot size for land in zones R2 and R3’ does not apply. Further, the site is not identified in a relevant zone to which cl 4.1AA ‘Minimum Lot size for Community Title Subdivisions’ applies.

8. The site is identified as having a maximum height control of 8.5m: cl 4.3 of LEP 2010. The development application confirms compliance with this standard.

9. Clause 7.1(3) 'Earthworks' applies to the site. The development application proposes minimal earthworks beyond that approved in Caddens v Penrith. Having reviewed the documents which form part of the development application and the matters listed at cl 6.2(3) of LEP 2010, I can be satisfied that none warrant the refusal of the development application.

10. Pursuant to cl 7.7 'Essential Services' of LEP 2010 the consent authority must not grant development consent to development on land to which LEP 2010 applies unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. Public utility infrastructure is defined to include infrastructure for the supply of water, supply of electricity, and the disposal and management of sewage. The parties agree, and I accept, that the site will have access to the essential services identified within this clause as demonstrated by the architectural and civil plans in the development application and the requirements of the annexed conditions. I am satisfied the requirements of cl 7.7 'Essential Services' are met.

11. Clause 7.3 ‘Urban Heat’ applies to the development application. The amended development incorporates planning and design measures to reduce the urban heat island effect through the removal of the previously proposed internal road. This amendment results in a material reduction of hardstand area. Further, the development proposes a substantial amount of private and public tree planting. The parties agree, and I accept, that I can be satisfied that the proposed development (as amended) incorporates planning and design measures which will reduce the heat island effect, consistent with this clause.

12. Penrith Development Control Plan 2014 (DCP 2014) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2014. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

1. 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 DA23/0798 to incorporate the documents listed below:

Dwg No.	Rev.	Drawing Title		Prepared By	Dated
Amended Architectural Plans
A0000	J	Cover Sheet and Development Calculations		ArkExpress	19.08.2024
A0003	J	Proposed Site Plan		ArkExpress	16.08.2024
A0006	H	Community Title Subdivision		ArkExpress	19.08.2024
A1101	I	Proposed Floor Plans		ArkExpress	16.08.2024
A1108	I	Ground Floor Retaining Walls Plan		ArkExpress	16.08.2024
A1111	G	Proposed Roof Plan		ArkExpress	16.08.2024
A2001	G	Elevations 1 – External		ArkExpress	16.08.2024
A2002	G	Elevations 1 - Internal		ArkExpress	16.08.2024
A2003	I	Elevations – North & South		ArkExpress	16.08.2024
A2005	I	Elevations 4 – Streetscape N/S		ArkExpress	21.08.2024
A3001	G	Sections 1		ArkExpress	16.08.2024
A3002	G	Sections 2		ArkExpress	16.08.2024
A3003	G	Driveway Sections		ArkExpress	16.08.2024
A9001	G	Window & Door Schedule		ArkExpress	16.08.2024
Amended Landscape Plans
S2-000	H	Landscape Coversheet		Site Image	29.08.2024
S2-100	I	Landscape Masterplan		Site Image	29.08.2024
S2-101	H	Landscape Plan		Site Image	29.08.2024
S2-102	H	Landscape Plan		Site Image	29.08.2024
S2-301	F	Landscape Plan – Typical Units		Site Image	29.08.2024
S2-601	G	Landscape Plan – Typical Units		Site Image	29.08.2024
S2-602	F	Landscape Elevations		Site Image	29.08.2024
Amended Civil Plans
P00651-CI-DA-S34-1001	C	Cover Sheet, Locality Plan and Drawing Schedule		GDS	09.08.24
P00651-CI-DA-S34-1021	C	General Notes		GDS	09.08.24
P00651-CI-DA-S34-1051	C	Extisting Site Survey and Services Plan		GDS	09.08.24
P00651-CI-DA-S34-1101	C	Erosion and Sediment Control Plan		GDS	09.08.24
P00651-CI-DA-S34-1131	C	Erosion and Seditment Control Details		GDS	09.08.24
P00651-CI-DA-S34-1201	C	Cut and Fill Earthworks Plan		GDS	09.08.24
P00651-CI-DA-S34-1231	C	Site Sections – Sheet 1		GDS	09.08.24
P00651-CI-DA-S34-1232	C	Site Sections – Sheet 2		GDS	09.08.24
P00651-CI-DA-S34-1233	C	Site Sections – Sheet 3		GDS	09.08.24
P00651-CI-DA-S34-1301	C	Stormwater Drainage Catchment Plan		GDS	09.08.24
P00651-CI-DA-S34-1321	C	Civil Works and Stormwater Drainage Plan		GDS	09.08.24
P00651-CI-DA-S34-1441	C	Stormwater Drainage Longitudinal Section		GDS	09.08.24
P00651-CI-DA-S34-1461	C	Stormwater Drainage Calcs – Sheet 1		GDS	09.08.24
P00651-CI-DA-S34-1462	C	Stormwater Drainage Calcs – Sheet 2		GDS	09.08.24
P00651-CI-DA-S34-1601	C	Retaining Wall Locality Plan		GDS	09.08.24
P00651-CI-DA-S34-1621	C	Retaining Wall Longitudinal Sections		GDS	09.08.24
Supporting Documentation
Document Title			Prepared By		Dated
Updated BASIX Certificate No. 1405125M_03			Energy Rating Group		16.08.24

8. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs thrown away as a result of reliance on the documents at [7] as agreed or assessed.

2. The appeal is upheld.

3. Development application DA23/0798 for the construction of fifteen attached dwellings and two semi attached dwellings including associated site works and community title subdivision at 29 O’Connell Street, Caddens NSW (Lot 6 DP 593628) is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 03 October 2024