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

[2024] NSWLEC 1617

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 1617

Hearing dates:

Conciliation conference 25, 26, 27 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 DA23/0797 for the construction of sixteen attached dwellings and twelve semi detached dwellings, associated site works and community title subdivision at 46-66 O’Connell Street Caddens (Lot 3 in DP 1103503) 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

the 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) 2021, 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 LeBreton (Solicitor)(Respondent)

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

File Number(s):

2023/432754

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 DA23/0797. The development application, as amended, seeks consent for the following development at 46-66 O’Connell Street, Caddens NSW, Lot 3 DP 1103503 (the Site):

1. community title subdivision;

2. construction of x16 attached dwellings and x12 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 one 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 and 27 August 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 Sean Xiao 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 one submission. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by the submission. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. The site for the subject development application is mapped as Bushfire Prone Land and a bushfire safety authority pursuant to s 100B(3) of the Rural Fires Act 1997 is required. By letter dated 2 November 2023 the NSW Rural Fire Service issued General Terms of Approval and a Bushfire Safety Authority in respect of the development. Those general terms of approval are reflected in the conditions of consent annexed to this judgment.

4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (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 the 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 the 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.

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 subdivision lot size for land in Zones R2 and R3’ do not apply. Further, the site is not identified in a relevant zone to which cl 4.1AA ‘Minimum subdivision lot size for community title scheme’ 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 further earthworks beyond that approved in Caddens v Penrith. In support of the proposed works, the Applicant has prepared an updated cut and fill plan and supporting sections which denotes the additional amount of cut provided. The conditions of consent require compliance with these documents. 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 development application, as amended, 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: 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 DA23/0797 to incorporate the documents listed below:

Dwg No.	Rev.	Drawing Title		Prepared By	Dated
Amended Architectural Plans
A0000	E	Cover Sheet and Development Calculations		ArkExpress	03.09.2024
A0003	E	Proposed Site Plan		ArkExpress	03.09.2024
A0007	E	Concept Subdivision Plan		ArkExpress	03.09.2024
A1101	E	Proposed Ground Floor Plans		ArkExpress	03.09.2024
A1102	E	Proposed First Floor Plans		ArkExpress	03.09.2024
A1103	E	Proposed Fencing Plan		ArkExpress	03.09.2024
A1106	E	Proposed Roof Plan		ArkExpress	03.09.2024
A2001	E	Streetscape Elevations & Fencing		ArkExpress	03.09.2024
A2002	E	Internal Elevations		ArkExpress	03.09.2024
A3001	E	Sections		ArkExpress	03.09.2024
A3002	E	Sections 02		ArkExpress	03.09.2024
A3003	E	Driveway Sections		ArkExpress	03.09.2024
A3004	E	Driveway Sections 02		ArkExpress	03.09.2024
A9001	E	Window & Skylight Schedule		ArkExpress	03.09.2024
A9002	E	Door Schedule		ArkExpress	03.09.2024
Landscape Plans
S1-000	H	Landscape Coversheet		Site Image	03.09.2024
S1-100	I	Landscape Masterplan		Site Image	03.09.2024
S1-101	H	Landscape Plan		Site Image	03.09.2024
S1-102	F	Landscape Plan		Site Image	22.08.2024
S1-103	G	Landscape Plan		Site Image	03.09.2024
S1-301	C	Landscape Plan – Typical Units		Site Image	22.08.2024
S1-501	B	Landscape Details		Site Image	22.08.2024
S1-601	D	Landscape Elevations		Site Image	03.09.2024
S1-701	C	Canopy Coverage Plan		Site Image	22.08.2024
Amended Civil Plans
P00651-CI-DA-S34-1001	B	Cover Sheet, Locality Plan and Drawing Schedule		GDS	21.08.24
P00651-CI-DA-S34-1021	B	General Notes		GDS	21.08.24
P00651-CI-DA-S34-1051	B	Extisting Site Survey and Services Plan		GDS	21.08.24
P00651-CI-DA-S34-1101	B	Erosion and Sediment Control Plan		GDS	21.08.24
P00651-CI-DA-S34-1131	B	Erosion and Seditment Control Details		GDS	21.08.24
P00651-CI-DA-S34-1201	B	Cut and Fill Earthworks Plan		GDS	21.08.24
P00651-CI-DA-S34-1231	B	Site Sections – Sheet 1		GDS	21.08.24
P00651-CI-DA-S34-1232	B	Site Sections – Sheet 2		GDS	21.08.24
P00651-CI-DA-S34-1233	B	Site Sections – Sheet 3		GDS	21.08.24
P00651-CI-DA-S34-1234	B	Site Sections – Sheet 4		GDS	21.08.24
P00651-CI-DA-S34-1301	B	Stormwater Drainage Catchment Plan		GDS	21.08.24
P00651-CI-DA-S34-1321	B	Civil Works and Stormwater Drainage Plan		GDS	21.08.24
P00651-CI-DA-S34-1441	B	Stormwater Drainage Longitudinal Section		GDS	21.08.24
P00651-CI-DA-S34-1461	B	Stormwater Drainage Calcs – Sheet 1		GDS	21.08.24
P00651-CI-DA-S34-1462	B	Stormwater Drainage Calcs – Sheet 2		GDS	21.08.24
P00651-CI-DA-S34-1601	B	Retaining Wall Locality Plan		GDS	21.08.24
P00651-CI-DA-S34-1621	B	Retaining Wall Longitudinal Sections		GDS	21.08.24
Supporting Documentation
Document Title			Prepared By		Dated
BASIX Certificate No. 1404373M_02			Energy Rating Group		09.09.24

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 DA23/0797 for the construction of sixteen attached dwellings and twelve semi detached dwellings, associated site works and community title subdivision at 46-66 O’Connell Street Caddens (Lot 3 in DP 1103503) 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