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

[2022] NSWLEC 1330

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 [2022] NSWLEC 1330

Hearing dates:

Conciliation conference on 26 April 2022, and 15 June 2022

Date of orders:

24 June 2022

Decision date:

24 June 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $40,000.

(3) Development Consent is granted to DA/21/0323 for a staged Community Title subdivision to create 119 residential lots, 1 residue lot and 4 super lots, civil works, creation of a new park and associated landscaping at 46-66 O'Connell Street, Caddens, subject to the conditions contained in Annexure ‘A’.

Catchwords:

APPEAL – development application – community title subdivision – earthworks – road construction – landscaping – conciliation conference – agreement reached

Legislation Cited:

Biodiversity Conservation Act 2016 s 7.7

Biodiversity Conservation Regulation 2017 cl 7.2

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cll 5.21, 7.1

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Water Management Act 2000

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)
T To (Respondent)

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

File Number(s):

2021/222237

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings concern a development application for staged community title subdivision of land at 46-66 O’Connell Street, Caddens. The development application was lodged with Penrith City Council on 11 May 2021. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The hearing of the appeal commenced on 16 March 2022. Following the adjournment of the hearing, 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 26 April 2022 and 15 June 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 15 June 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

4. The amended development application is an integrated development application that seeks 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. The landscaping includes the creation of a new park. The amendments made in the amended development application include the inclusion of a variety of lot sizes and widths designed to accommodate a range of future dwelling types, as well as the four super lots that can accommodate future medium density development. The amendments also increase the width of the road reserves, include a pocket park to contribute to the amenity of the area, and minimises impacts on the intact Cumberland Plain Woodland patch within the site.

5. The decision agreed upon is for the grant of development consent to the amended development application, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional matters about which the Court, in exercising the functions of the consent authority, must be satisfied prior to the grant of development consent. The parties also annexed a statement of reasons to the signed agreement, which sets out the reasons why the agreement has been reached.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• Pursuant to the Penrith Local Environmental Plan 2010 (PLEP), part of the site is zoned R3 – Medium Density Residential, and the western portion of the site fronting O’Connell Street is zoned B2 – Local Centre. Subdivision of land is permissible within the B2 and R3 zones. The proposed development is a community title subdivision, and there is no minimum lot size that applies to this type of subdivision.

• The proposed development includes earthworks, and cl 7.1 of the PLEP requires certain matters to be considered prior to the grant of development consent. Based on the bulk earthworks plan, the notes in the engineering plans, and the agreed conditions of development consent, I have considered the matters in cl 7.1(3).

• The site is within the flood planning area and cl 5.21 of the PLEP applies. Based on the Overland Flow Flood Study Report dated 4 May 2022, I have considered the matters in cl 5.21(3) of the PLEP and I am satisfied of the matters in cl 5.21(2).

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP 2021). Based on the Detailed Site Investigation prepared by ERM Services Australia dated May 2020, and the Detailed Site Investigation prepared by Dirt Doctors dated 23 February 2021, I am satisfied that the potential for contamination of land is low and that the site can be made suitable for the proposed development.

• The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a s 100B bush fire safety authority subject to terms of approval, which have been incorporated in the conditions of development consent.

• The National Resources Access Regulator has confirmed (in a letter dated 24 March 2022) that a controlled activity approval under the Water Management Act 2000 is not required as the works are not on waterfront land.

• The proposed development includes the clearing of certain native vegetation that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report (BDAR) is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the amended development application includes a BDAR prepared by Cumberland Ecology dated 14 March 2022. The BDAR recommends the implementation of a number of mitigation measures, through a Vegetation Management Plan and a Fauna Management Plan, which have each been prepared and form part of the proposed development. The BDAR includes that, with the implementation of the proposed mitigation measures, the impacts of the proposed development on threatened fauna and ecological species will be limited and retained vegetation will be subject to active management. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have therefore been satisfied.

7. 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)).

8. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court notes that:

1. Penrith City Council, as the relevant consent authority, has agreed, under cl 55(1) of the EPA Regulation, to the Applicant amending the Development Application DA/21/0323 in accordance with the documents listed below:

Plan Name	Project Reference	Drawing No and Revision		Prepared By	Dated
Amended Civil Plans
Cover Sheet, Locality Plan and Drawing Schedule	P00361	P00361-CI-S34-1001, Revision F		Group Development Services Pty Ltd	27 May 2022
General Notes	P00361	P00361-CI-S34-1021, Revision F		Group Development Services Pty Ltd	27 May 2022
Subdivision Plan	P00361	P00361-CI-S34-1025, Revision F		Group Development Services Pty Ltd	27 May 2022
General Arrangements Plan	P00361	P00361-CI-S34-1031, Revision F		Group Development Services Pty Ltd	27 May 2022
Existing Site Survey	P00361	P00361-CI-S34-1051, Revision F		Group Development Services Pty Ltd	27 May 2022
Demolition and Tree Removal / Retention Plan	P00361	P00361-CI-S34-1061, Revision F		Group Development Services Pty Ltd	27 May 2022
Erosion and Sediment Control Plan	P00361	P00361-CI-S34-1101, Revision F		Group Development Services Pty Ltd	27 May 2022
Erosion and Sediment Control Details	P00361	P00361-CI-S34-1131, Revision F		Group Development Services Pty Ltd	27 May 2022
Bulk Earthworks Plan	P00361	P00361-CI-S34-1201, Revision F		Group Development Services Pty Ltd	27 May 2022
Site Sections Sheet 1	P00361	P00361-CI-S34-1231, Revision F		Group Development Services Pty Ltd	27 May 2022
Site Sections Sheet 2	P00361	P00361-CI-S34-1232, Revision F		Group Development Services Pty Ltd	27 May 2022
Site Sections Sheet 3	P00361	P00361-CI-S34-1233, Revision F		Group Development Services Pty Ltd	27 May 2022
Stormwater Catchment Plan Pre-development	P00361	P00361-CI-S34-1301, Revision F		Group Development Services Pty Ltd	27 May 2022
Stormwater Catchment Plan Ultimate Design	P00361	P00361-CI-S34-1302, Revision F		Group Development Services Pty Ltd	27 May 2022
Civil Works and Stormwater Drainage Overall Plan	P00361	P00361-CI-S34-1321, Revision F		Group Development Services Pty Ltd	27 May 2022
Civil Works and Stormwater Drainage Plan - Sheet 1	P00361	P00361-CI-S34-1322, Revision F		Group Development Services Pty Ltd	27 May 2022
Civil Works and Stormwater Drainage Plan - Sheet 2	P00361	P00361-CI-S34-1323, Revision F		Group Development Services Pty Ltd	27 May 2022
Civil Works and Stormwater Drainage Plan - Sheet 3	P00361	P00361-CI-S34-1324, Revision F		Group Development Services Pty Ltd	27 May 2022
Civil Works and Stormwater Drainage Plan - Sheet 4	P00361	P00361-CI-S34-1325, Revision F		Group Development Services Pty Ltd	27 May 2022
Bioretention Basin Plan and Sections Sheet 1	P00361	P00361-CI-S34-1411, Revision F		Group Development Services Pty Ltd	27 May 2022
Bioretention Basin Plan and Sections Sheet 2	P00361	P00361-CI-S34-1412, Revision F		Group Development Services Pty Ltd	27 May 2022
Bioretention Basin Plan and Sections Sheet 3	P00361	P00361-CI-S34-1413, Revision F		Group Development Services Pty Ltd	27 May 2022
Bioretention Basin Plan and Sections Sheet 4	P00361	P00361-CI-S34-1414, Revision F		Group Development Services Pty Ltd	27 May 2022
Typical Road Cross Sections	P00361	P00361-CI-S34-1501, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 1	P00361	P00361-CI-S34-1521, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 2	P00361	P00361-CI-S34-1522, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 3	P00361	P00361-CI-S34-1523, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 4	P00361	P00361-CI-S34-1524, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 5	P00361	P00361-CI-S34-1525, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 6	P00361	P00361-CI-S34-1526, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 7	P00361	P00361-CI-S34-1527, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 8	P00361	P00361-CI-S34-1528, Revision F		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 9	P00361	P00361-CI-S34-1529, Revision A		Group Development Services Pty Ltd	27 May 2022
Road Longitudinal Sections Sheet 10	P00361	P00361-CI-S34-1530, Revision F		Group Development Services Pty Ltd	27 May 2022
Road 01 Retaining Wall Sections	P00361	P00361-CI-S34-1631, Revision F		Group Development Services Pty Ltd	27 May 2022
Retaining Wall Longitudinal Sections – Sheet 1	P00361	P00361-CI-S34-1632, Revision E		Group Development Services Pty Ltd	27 May 2022
Retaining Wall Longitudinal Sections – Sheet 2	P00361	P00361-CI-S34-1633, Revision E		Group Development Services Pty Ltd	27 May 2022
Street Tree Planting Plan	P00361	P00361-CI-S34-1701, Revision F		Group Development Services Pty Ltd	27 May 2022
Street Tree Planting Details	P00361	P00361-CI-S34-1721, Revision F		Group Development Services Pty Ltd	27 May 2022
Amended Landscape Plans
Cover Sheet	191113	LDA-00, Revision M		Geoscapes Landscape Architects	31 May 2022
Streetscape Masterplan & Tree Schedule	191113	LDA-01, Revision M		Geoscapes Landscape Architects	31 May 2022
Streetscape Sections AA & BB & Tree Imagery	191113	LDA-02, Revision M		Geoscapes Landscape Architects	31 May 2022
Streetscape Sections CC & DD	191113	LDA-03, Revision M		Geoscapes Landscape Architects	31 May 2022
Park Concept Plan	191113	LDA-04, Revision M		Geoscapes Landscape Architects	31 May 2022
Pocket Park Concept Plan	191113	LDA-05, Revision M		Geoscapes Landscape Architects	31 May 2022
Pocket Park Section & Imagery	191113	LDA-06, Revision M		Geoscapes Landscape Architects	31 May 2022
Specifications & Typical Landscape Details & CPW Plant Schedule	191113	LDA-07, Revision M		Geoscapes Landscape Architects	31 May 2022
Reports/Supporting Documentation
Document Name			Date	Prepared by
Tree Inspection Report			22 April 2022	Treehaven Environscapes
Amended Concept Stormwater and Water Quality Management Report			29 April 2022	Group Development Services Pty Ltd
Overland Flow Flood Study Report			4 May 2022	GRC Hydro
Bushfire Protection Assessment			3 May 2021	Eco Logical Australia
Detailed Site Investigation			14 May 2020	ERM Services Australia
Detailed Site Investigation			23 February 2021	Dirt Doctors Geotechnical Testing Services
Amended Waste Management Plan			March 2022	Auswide Consulting
Biodiversity Development Assessment Report			14 March 2022	Cumberland Ecology
Fauna Management Plan			13 March 2022	Cumberland Ecology
Vegetation Management Plan			14 March 2022	Cumberland Ecology
Road Safety Audit			19 January 2022	DC Traffic Engineering

2. The amended development application documents listed above were lodged on the NSW planning portal on 10 June 2022.

3. The amended development application was filed with the Court on 6 June 2022.

10. The Court orders that:

1. The appeal is upheld.

2. The Applicant pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $40,000.

3. Development Consent is granted to DA/21/0323 for a staged Community Title subdivision to create 119 residential lots, 1 residue lot and 4 super lots, civil works, creation of a new park and associated landscaping at 46-66 O’Connell Street, Caddens, subject to the conditions contained in Annexure ‘A’.

……………………….

J Gray

Commissioner of the Court

​​​​​​​Annexure A.pdf

**********

Decision last updated: 24 June 2022